Volume 169 — North Carolina Reports

<p>Appeal by defendant from Peebles, J., at October Term, 1914, of CARTERET.</p> <p>Proceeding to protest Entry No. 4463 of a piece of land described as follows: “All that certain part of reclaimed land filled into the seawall of Morebead City, lying in tbe town of Morebead City east of Seventh Street and south of Arendell Street, beginning on Seventh Street at the southwest corner of Lot No. 8 in Square No. 7, and running thence south along what is called Seventh Street on the land of the town of Morehead City to deep-water or harbor line of Bogue Sound, thence east 100 feet, thence north parallel with Seventh Street to the southeast corner of said Lot No. 8 in Square No. 7, thence west along the line of said Lot No. 8 100 feet to the beginning, being the reclaimed land of the former water front of Lot No. 8 in Square No. 7 in the plan of the town of Morehead City, and the water front thereof to deep-water or harbor line.”</p> <p>The court submitted this issue to the jury: “Is the land described in the entry filed in this case vacant land and subject to entry thereof and grant from the State?” The entry of the defendants embraced Lots 6 and 7 in Square No. 7, as shown on the map of Morehead City. It was admitted that on 24 May, 1856, a grant was issued by the State to John M. Morehead and 'William H. Arendell for “the land lying around Shepherd’s Point between high-water mark and the deep water of Bogue Sound, Newport River, and Calico Creek,” which covered the land in dispute. This land, covered at that time by the waters of Bogue Sound, was conveyed by John M. Morehead and others, on 2 July, 1857, to the Shepherd’s Point Land Company, and the enterer claims to have acquired title by mesne conveyances from that company to Lot No. 8, which lies iu Square No. 7, between Lots 6 and 7 and Lots 9 and 10, the last two lots (9 and 10), which are now claimed by the protestant, being, at the time the deed of Morehead and others to the land company was executed, partly covered by the waters of said sound and partly dry land. Tbe tracks of tbe protestant are laid in Arendell Street, immediately back and north of Lots 9 and 10, witb a sidewalk intervening. Arendell Street is one of tbe public streets of Morebead City, and protestant bas its right of way thereon for its full width. Lots 9 and 10, and Lot 8, and Lots 6 and 7, in tbe order named, lie south of Arendell Street and tbe sidewalk, in tbe direction of Bogue Sound, and at tbe time of tbe grant to Morebead and Arendell, and tbe deed of Morebead and others to tbe land company, they were covered by its waters at high tide, except a small part of Lots Nos. 9 and 10 on their northern side. At low tide all of Lots 9 and 10, 8,'and 6 and 7 were exposed, except a small part at tbe lower end of Lots 6 and 7. In 1902 Lot No. 8 was filled in witb oyster shells, which caused an accretion of tbe land to form, and a fish and oyster bouse were built thereon. This was done by A. T. Lavalette, under whom tbe enterer claimed Lot No. 8, and who held a deed for said lot, and claimed under tbe land company, and a wharf was constructed from these buildings across Lots 6 and 7 and far enough out for boats to reach tbe wharf at low tide. Lot No. 8, after it was filled in as described, was above high-water mark witb ordinary tides, but would be covered by “an extremely high tide.” In 1913 a concrete sea-wall was built in front of these lots and of tbe town, and the" space between it and high land was filled in witb dirt and silt from dredgings made by tbe United States Government in Bogue Sound channel. Tbe land is now above water and is dry land. This sea-wall, built for tbe purpose of filling in tbe space back of it to high land, “was paid for by Morebead City and individual owners of property.” It is stated in tbe case that tbe protestant “bought some parts of Block 7 from tbe Shepherd Point Land Company and bas been in possession of it for ten years, and that all property in Morebead City and adjacent thereto, not otherwise occupied, bas been in tbe possession of tbe said land company for a great many years.” It also appears that after tbe space between tbe sea-wall and high land bad been filled in, a street was opened, presumably by tbe city, along and by tbe side of tbe wall, known as Evans Street, and Lots 6 and 7 now face on that street. There are 16 lots in Block 7. It is also stated that a grant was issued by tbe State for “all of this land,” covering Lots 6 and 7, to tbe Shepherd Point Land Company in 1857. Tbe waters of Bogue Sound are navigable.</p> <p>Tbe court held that, it having been admitted that tbe grant to More-bead and Arendell covered Lots 6 and 7, which defendant bad entered, a second grant of tbe same land would be void, and tbe land was not, therefore, tbe subject of entry; and this being so, be would instruct tbe jury to answer tbe issue “No.” The defendant, in deference to this ruling of tbe court, refrained from offering any further testimony or defense. Tbe court then instructed tbe jury to answer tbe issue “No,” if they believed the. evidence, and defendant excepted. The jury answered the issue “No.” Judgment was entered upon the verdict, and defendant appealed.</p>

Appeal by plaintiff from Peebles, J., at January Term, 1915, of DüPLIN. Action to recover a penalty of $200, imposed by section 2365 of tbe Revisal upon any person who shall presume to hold any office or place of trust or profit contrary to Article XIV, section 7, of the Constitution of the State. The statute confers the right of action to recover the penalty upon any one who shall sue for the same.

Appeal by plaintiff from Allen, J., at September Term, 1914, of New HaNOVER. Civil action beard upon a report of referee. His Honor confirmed tbe report, and tbe plaintiff appealed.

<p>Appeal by intervenor from Lyon, J., at November Term, 1914, of Foestth.</p> <p>Action instituted against the defendant Candler to recover the sum of $300 due by note and to enforce an attachment levied upon five shares of stock in the Gilmer Bros. Company, a corporation of North Carolina.</p> <p>The Commonwealth Bank intervened, claiming that it was the owner of said stock.</p> <p>The parties agreed upon the following facts:</p> <p>1. That Charles W. Bleakley is a resident of the State of Virginia, and at the time of the institution of this suit the defendant R. L. Candler was a resident of the State of Maryland, but that since the institution of the action he has died, and L. A. Vaughn of 'Winston-Salem, N. C., bas been appointed bis administrator; that tbe interpleader, Tbe Commonwealth Bank, is a banking corporation, organized under tbe laws of tbe State of Maryland, doing business in tbe city of Baltimore in said State; and that Gilmer Bros. Company, tbe garnishee, is a corporation organized under tbe laws of tbe State of North Carolina, with its principal office and place of business in Winston-Salem, N. 0.</p> <p>2. That on 27 June, 1905, Stock Certificate No. 74 for five shares of Gilmer Bros, preferred stock, of tbe par value of $100 per share, was issued to R. L. Candler, and that tbe stub of Certificate No. 74 in tbe possession of Gilmer Bros. Company bears no entries since tbe date of tbe issue of tbe stock.</p> <p>3. That on 27 October, 1911, R. L. Candler borrowed from tbe Commonwealth Bank, in tbe city of Baltimore, State of Maryland, tbe sum of $700, and executed bis promissory note dated 27 October, 1911, for tbe sum of $700, payable 1 March, 1912, and at tbe time be secured tbe said loan be delivered to tbe bank with tbe note, as collateral security, Certificate No. 74, for five shares of Gilmer Bros, preferred stock, said certificate being indorsed in blank by him before delivery to tbe bank.</p> <p>4. That there is still a balance due on said note of $475, with interest on $700 from 1 March, 1912, to 26 October, 1912, and on $475 from 26 October, 1912, until paid, and that tbe said Commonwealth Bank still bolds said Stock Certificate No. 74 for five shares of Gilmer Bros, stock as collateral security for tbe payment of said note.</p> <p>5. That on 31 August, 1912, tbe plaintiff Charles W. Bleakley instituted an attachment suit in tbe Superior Court of Forsyth County against R. L. Candler to recover tbe sum of $300, with interest from 28 February, 1911, said amount being due tbe said Charles W. Bleakley upon a note executed by R. L. Candler for tbe sum of $300, in tbe city of Baltimore, Maryland, on 28 February, 1911. That a warrant of attachment was issued in said action and a summons was served upon Gil-mer Bros. Company to appear before tbe clerk of tbe Superior Court of Forsyth County and answer upon oath what it owed tbe defendant R. L. Candler, or what stock tbe said R. L. Candler bad in Gilmer Bros. Company at tbe time of tbe service of tbe attachment, as appears in tbe record.</p> <p>6. That Gilmer Bros. Company answered that tbe stock book of Gil-mer Bros, shows that on 27 June, 1905, Stock Certificate No. 74 for five shares of Gilmer Bros. Company preferred stock of tbe par value of $100 was issued to R. L. Candler, and that said stock certificate is not now in tbe possession of Gilmer Bros. Company, and it bas no knowledge of where said stock certificate now is. Also that it bas no knowledge of any debts or effects belonging to R. L. Candler, as appears in tbe answer of Gilmer Bros. Company.</p> <p>7. That on 5 September, 1912, tbe sheriff of Forsyth County served the following notice upon Gilmer Bros. Company:</p> <p>“You will take notice that by virtue of an attachment issued in the' above entitled cause from the Superior Court of Forsyth County, a copy of said attachment having been delivered to you, that I do levy upon the five shares of stock owned in your company by the defendant R. L. Candler, evidenced by Certificate No. 74, and do forbid you from making any transfer of the said stock, or of the certificate representing said stock, upon your stock transfer book until the orders of the court permit you to do so, in the cause now pending as entitled above.”</p> <p>8. That the following is a copy of article 9, sections 2 and 3, of the by-laws of Gilmer Bros. Company:</p> <p>“Sec. 2. The shares of the company shall be transferable only on the books of the company, upon surrender and cancellation of the outstanding certificates for the shares as transferred, and a new certificate issued therefor.</p> <p>“Sec. 3. The transfer book shall be the only evidence as to who are the shareholders entitled to vote at any meeting of the stockholders.”</p> <p>9. That the Commonwealth Bank has interpleaded in said action and has asked that it be decreed to have a lien on said five shares of Gilmer Bros, stock prior to that of the plaintiff.</p> <p>10. That the Commonwealth Bank has not advertised the five shares of stock for sale, but is holding same, and that Gilmer Bros. Company has not paid out any dividends on said stock, but is holding same pending the outcome of this action.</p> <p>11. That no transfer of Stock Certificate No. 74 was ever made on the transfer book of Gilmer Bros. Company, but that from the transfer book of Gilmer Bros. Company the said R. L. Candler appears to be the owner of Certificate No. 74; that Gilmer Bros. Company has not been requested to make any entry on its transfer book of any kind at any time prior to the issuing of the attachment in this cause, and had no knowledge or notice of the transfer to the Commonwealth Bank prior to the institution of this action and service of this attachment.</p> <p>12. That L. A. Vaughn, administrator of R. L. Candler, has in his hands, as assets belonging to the estate, the sum of $401.80 in cash, and that claims have been filed by creditors with the said L. A. Vaughn, administrator, aggregating $543.53, other than the claims of this plaintiff ; that the $300 claim of plaintiff would make total claims filed with L. A. Vaughn, administrator, and due by the estate of R. t. Candler of $843.53.</p> <p>His Honor 'rendered judgment in favor of the plaintiff, holding that the attaching creditor had priority over the bank, and the bank excepted and appealed.</p>

Appeal by plaintiffs from Harding, J., at chambers, 28 December, 1914; from MeckleNburg-. This is an appeal from a refusal by the judge to continue a restraining order to the bearing.

Appeal by plaintiff from Lane, J., at December Term, 1914, of Eich-Mom. Action to recover land. Tbe plaintiffs alleged that tbey were tbe owners of tbe land in controversy, and tbis was denied by tbe defendant. At tbe conclusion of tbe evidence bis Honor entered judgment of non-suit upon motion of tbe defendant, and tbe plaintiffs excepted and appealed.

Appeal by J. 0. Biggs, receiver, from Allen, J., at March Term, 1915, of BlADEN. Oil 29 December, 1913, the Newton-McArthur Lumber Company, a corporation, failed in business, was declared insolvent by the court, and J. C. Biggs appointed receiver of its assets in a proceeding under the statute.

<p>1. Insurance — Policies—Contracts—Interpretation.</p> <p>A contract or policy of insurance, like any other contract, is construed to carry out the intention of the parties as gathered from the words employed, and strictly against .the insurer when ambiguously or obscurely expressed, as presumably it has been prepared by it; and the object of the contract being to afford an indemnity against loss, it will be so construed as to effectuate this purpose, rather fhan defeat it.</p> <p>2. Same — Automobiles—Reasonable Provisions — Hire or Passenger Service.</p> <p>In construing a policy upon an automobile, with express provision that it “will not be rented or used for passenger service of any kind for hire except by special consent of the company indorsed on the policy,” it is held that a single act of renting or using the car for hire, by an employee of the owner without his knowledge, will not in itself be considered as such a breach of the owner’s warranty as • will forfeit the insurance thereon.</p> <p>8. Same — Loss by Pire — Continuous Service.</p> <p>Where the owner of a garage having automobiles for hire also keeps one there, with the others, but as. his private car and for his own personal use, and has the same insured' under a policy containing the provision that he will not rent out or use the car for passenger service for hire, the facts that his employee, without his knowledge, had taken a party out for hire in the machine to a certain place, and, on the next day, after the passengers had been discharged, and after the owner had himself resumed possession and control of the car, it was destroyed by fire, and that some time before, and on another occasion, this car had been used by an employee once in taking a passenger to the railroad station, do not constitute a forfeiture of the insurance, the renting or using the car for hire, as expressed in the policy, contemplating something of a more continuous nature than the isolated instances mentioned.</p> <p>4. Same — Hazard or Risk.'</p> <p>. The plaintiff having lost his automobile by fire, which was insured under a policy providing it should not he rented out or used in passenger service for hire, sued to recover thereon, and it appeared that immediately before the loss his employee, without his knowledge, had used the car for hire to others, hut that the loss had occurred thereafter, and while being returned, after having some repairs made, to the owner’s garage under his directions. There being no evidence that the outward trip had any direct bearing upon the loss, or increased the risk at the time thereof, it is Held, that, under the circumstances, the loss did not fall within the intent and meaning of the prohibitive clause of the policy, so as to work a forfeiture thereunder.</p>

Appeal by plaintiff from Devin, J., at November. Term, 1914, of Guilfobd. Civil action brought to recover $259.32, the price of a car-load of bananas which the plaintiff alleges it had sold to the defendants. There was a verdict and judgment for the defendant. The plaintiff appealed. The following was the issue: “Are the defendants indebted to the plaintiff, and if so, in what amount? Answer: Nothing.”

<p>1. Yendor and Purchaser — Contracts—Warranty Implied — Merchantable.</p> <p>The law will imply a warranty in the sale of goods that they are at least merchantable or capable of some use for the intended purpose; and where, in the sale of a second-hand hearse, neither of the parties having seen it, the seller expressly states that he will not warrant its “condition,” owing to the difference in opinion of the value of such things, but that it will be shipped to the buyer ready for use, etc., it will not affect the implied warranty that the hearse can at least be used as such and that it is not worthless, for the provisions stated by the seller only relate to a warranty of the quality of the article sold, which the law itself excludes in the absence of contractual provision therefor.</p> <p>2. Same —Entire Contract — Correspondence — Warranty of Quality — Merchantable — Interpretation.</p> <p>In correspondence leading up to and included in a contract of sale of a hearse, the purchaser wrote the seller that he was in need of a good secondhand hearse, to which the seller replied that he had one at a certain place which he would ship on receiving remittance therefor in a certain sum, and upon receiving the remittance, he held the check and wrote the purchaser that, to avoid misunderstanding, he desired to say he would not guarantee any'second-hand vehicles, etc. Upon its arrival the purchaser found it to he worthless. Neither of the parties had seen the hearse up to that time. I-Ield, the purchaser may recover upon the implied warranty that the hearse could at least be used as such, hut not as to the quality; and the entire contract is not inconsistent with this construction, or as striking out the express provision that vehicles of this kind were not guaranteed hy the seller.</p>

<p>Appeal by plaintiff from Rountree, J., at January Term, 1915, of Moon®.</p> <p>Civil action to recover damages for the destruction of the plaintiff’s lumber, caused by fire alleged to have been set out by the defendant’s servants on the right of way and communicated to the plaintiff’s lumber, located close to tbe right of way. At tbe conclusion of tbe evidence tbe court sustained a motion'to nonsuit, and tbe plaintiff appealed.</p>

Appeal by plaintiff from Shaw, J., at September Term, 1914, of GASTON.

<p>1. Debtor and Creditor — Deeds and Conveyances — Evidence — Fraud—Husband and Wife.</p> <p>Tlie mere declarations of the husband are not admissible as evidence against the wife in an action to set aside a deed made by the former to the latter as fraudulent as to his creditors; and the exclusion of such declarations becomes immaterial when it has been established that there was no fraudulent intent on his part.</p> <p>2. Same — Intent—Scope of Inquiry. •</p> <p>Upon cross-examination of the plaintiff in his action to set aside a deed made by a husband to his wife, upon the ground of fraud, much latitude is given upon the question of the defendant’s fraudulent intent in making the conveyance, which affects the credibility of the witness or tends to assist the jurors; and the scope of the inquiry is broadened to take in all the relevant circumstances and conditions surrounding the parties.</p> <p>8. Debtor and Creditor — Deeds and Conveyances — Husband and Wife — Fraudulent Intent — Evidence.</p> <p>In an action to set aside a deed from a husband to bis wife as fraudulent against bis creditors, it is competent for tbe former to testify wby be bad made tbe deed, when relevant to tbe question of bis fraudulent intent.</p> <p>1. Same — Principal and Surety — Insolvent Surety — Good Faitli.</p> <p>When one of two sureties on a note has become insolvent and tbe other surety has paid off the note and brings action against tbe principal to set aside, as fraudulent against him, a deed he has made to his wife, it is competent for the defendant to testify that before be bad made the deed be was informed by tbe cashier of tbe local bank that tbe insolvent surety bad property, as affecting tbe.question of his good faith and intent in retaining a sufficient amount of property to meet bis obligations.</p> <p>5. Debtor and Creditor — Deeds and Conveyances — Voluntary Conveyance— Presumptions- — Fraudulent Intent — Evidence—Interpretation of Statutes.</p> <p>In an action to set aside a husband’s deed to bis wife for fraud as to bis creditors, the presumption formerly arising from a voluntary conveyance is removed and tbe indebtedness of the husband is evidence only from which tbe intent may be inferred, and a requested instruction is properly refused which requires tbe defendant to satisfy the jury by tbe greater weight of tbe evidence that be retained property fully sufficient and available. Revisal, sec. 962.</p> <p>6. Debtor and Creditor — Deeds and Conveyances — Husband and Wife — Fraudulent Intent — Evidence—Principal and Surety.</p> <p>Where the plaintiff seeks to set aside as fraudulent as against himself a deed to lands made by tbe husband to his wife, upon tbe ground that be with another became surety on tbe defendant’s note, the cosurety became insolvent, and be paid tbe note in full, and that tbe husband had not retained sufficient property to pay bis debts at tbe time of tbe conveyance, evidence as to tbe reasonable belief of the defendant that the cosurety was solvent at the time of tbe conveyance is competent; and as to tbe value of the property retained by the defendant, it need not have been sufficient to include tbe full amount of the note, so far as the plaintiff was concerned, be at tbe time being liable only, as surety, for half thereof.</p> <p>Brown, J., dissenting; Walker, J., concurs in dissenting opinion.</p>

Appeal by defendant from Adams, J., at November Term, 1914, of CABAREUS. Tbis action was brought to recover damages for injuries alleged to have been caused by the defendant’s negligence. Plaintiff was second band in defendant’s mill, and bis duty was to keep tbe machinery running. An electric motor furnished the power, but he had nothing to do with it or the electric apparatus of any kind. The machines were run by shafts, belts, and pulleys.

<p>Appeal by plaintiff from Shaw, J., at November Term, 1914, of MeckleNbueg.</p> <p>Action to recover damages, in wbicb tbe plaintiff filed the following complaint:</p> <p>Tbe plaintiff, complaining of tbe defendant, alleges:</p> <p>1. That be is and was, at tbe times hereinafter mentioned, a resident and citizen of said county and State, and that tbe defendant is and was, at said times, a corporation under and by virtue of tbe laws of North Carolina, engaged in tbe business of handling drugs, fountain beverages, etc., with its principal place of business in tbe city of Williamston in Martin County in said State.</p> <p>3.That on or about 25 September, 1913, tbe plaintiff and defendant entered into tbe following agreement, towit: “It is understood and agreed by M. F. Wooten and S. R. Biggs Drug Company, that tbe said M. F. Wooten is to make blue-print plans, elevation and perspective sketches and detailed specifications for one set of drug fixtures to be purchased by tbe Biggs Drug Company. It is further agreed that upon receipt of said sketch, plans and specifications, tbe S. R. Biggs Drug Company will pay tbe sum of $100 to M. F. Wooten for said services, and then if S. R. Biggs Drug Company should accept tbe proposition from M. F. Wooten on tbe fixtures and buy same from him, tbe money paid ($100) will be credited on tbe face of tbe contract, and credit for this amount will be given on tbe purchase price. In case S. R. Biggs Drug Company buys from another man or firm, then M. F. Wooten will keep said money, and be fully paid for bis services.” Signed by “S. R. Biggs Drug Company, S. R. B.” Signed “M. F. Wooten.”</p> <p>3. That agreeable to tbe foregoing, tbe said plaintiff prepared and delivered to tbe defendant tbe plans and specifications above referred to, and tbe same were duly accepted by tbe defendant, whereby tbe defendant became indebted to tbe plaintiff in tbe sum of $100, as above set forth.</p> <p>4. That said plans were for tbe purpose of enabling tbe defendant to purchase and install certain drug-store fixtures which it proposed to purchase. That plaintiff was a representative of a concern furnishing such fixtures. That by tbe terms of said contract and a cotemporaneous agreement tbe defendant contracted and agreed with plaintiff to notify plaintiff when it would be ready to let bids for said proposed purchase of certain drug-store fixtures, and assured tbe plaintiff that it would favor him in tbe purchase of said fixtures.</p> <p>5. That plaintiff is informed and believes, and so alleges, that tbe defendant has already purchased said fixtures without notifying plaintiff or giving him an opportunity to be present and bid upon said fixtures. That plaintiff is informed and believes, and so alleges, that tbe defendant has purchased fixtures conformable to said plans from tbe other parties in tbe sum of about $3,500, and that if plaintiff bad’been notified of said purchase by defendants and been permitted to bid on said fixtures, be could and would have met said price and thereby obtained said order, which would have netted plaintiff 20 per cent, or $750.</p> <p>6. Tbat by reason of the failure of the defendant to comply with its contract and permit plaintiff to participate in said bidding, the plaintiff lost said sale and the commission thereon, and that thereby the defendant is justly indebted to the plaintiff in the sum of $750.</p> <p>Wherefore the plaintiff prays judgment against the defendant for $750, with interest thereon from the .... day of., 1914, and the costs of the action, to be taxed by the clerk.</p> <p>At the return term of the summons, and after the complaint was filed, the defendant moved to dismiss the action for want of jurisdiction in the Superior Court, upon the ground that the only cause of action alleged in the complaint was for the recovery of $100, which was in the jurisdiction of a justice of the peace, and that the allegations as to the agreement to notify the plaintiff when it would be ready to let bids were not sufficient to constitute a contract which could be enforced.</p> <p>The motion was continued and was heard at the next succeeding term of court, when the motion was allowed and judgment was entered dismissing the action, and the plaintiff appealed, assigning the following errors:</p> <p>1. The refusal of the court to compel the defendant to give notice under the special appearance, for- the hearing of his motion to dismiss said action for a lack of jurisdiction, and in hearing said motion without notice being given as required by law, over plaintiff’s objection.</p> <p>2. To the judgment as set out in the record, and especially as the court did not find that the demand in the complaint was not made in good faith, but held, either ex mero motu or upon a demurrer ore tenus by defendant under a special appearance, that the plaintiff could not maintain said action.</p>

Appeal by plaintiff from Shaw, J., at November Term, 1914, of MeckleNbueg. Civil action. At tbe conclusion of tbe plaintiff’s evidence tbe court sustained tbe motion to nonsuit. Tbe plaintiff appealed.

<p>1. Railroads — Easements — Rights of Way — Payment of Assessment — Right of Appeal — Statutes—Amendments.</p> <p>On appeal by a railroad company from the amount of the assessment to be paid the owner of lands for its right of way it is necessary for the company to pay the money into court before building and operating its road [Revisal, secs. 2587, 2567 (4), 2566]; but this does not preclude the right of subsequent legislation to permit by special charter the railroad to appeal without paying the assessment until final judgment.</p> <p>2. Same — Final Judgment — Talcing of Property — Compensation—Constitutional Law.</p> <p>Where a legislative charter of a railroad company requires the company to pay the assessment for the right of way into court before acquiring the right to construct its road thereon pending appeal, and thereafter, and subsequent to the general statutes on the subject, an amendment is made by the Legislature, permitting the company, after the amount of compensation has been fixed by certain proceedings provided for, to enter upon the lands for the purpose of constructing its road without condemnation. It is not a talcing of private property prohibited by the Constitution, for the title to the right of way does not pass until final judgment and compensation in accordance therewith.</p>

Appeal by plaintiff from Adams, J., at February Term, 1915, of LINCOLN. Civil action beard on case agreed.

<p>Judgments — Estoppel—Disseizin—Acquiescence—limitation of Actions.</p> <p>Where a judgment is rendered in favor of a party to an action to recover lands it -will operate as an estoppel against all claiming under him from the same source; but where such claimant has thereafter entered upon, inclosed, and used the land for the best or only purpose for which it was capable, for the statutory period of twenty years, he will acquire a new estate therein by disseizin and acquiescence. Revisal, sec. 383.</p>

Appeal by plaintiff from Justice, J., at August Term, 1914, of Ruti-iereobd. This is a proceeding for partition of land, in wbicb defendant- pleaded sole seizin. William Henson, wbo once owned the land, and his wife, Jane Henson, under whom plaintiffs claim as heirs, conveyed the land to their sons, William A. and Jason Henson. William Henson died in 1885 or 1886, and Jason Henson died eleven years ago.

Appeal by plaintiff from Connor, J., at November Term, 1914, of HARNETT. Civil action of trespass, involving, also, an issue as to title. There was evidence tending to show that in 1824 Alex.

Appeal by both parties from Qa/rter, J., at Special June Term, 1914, of SwaiN. This action was brought to quiet the title to a large tract of land in the county of Swain, formerly Macon, on the waters of Hazelnut Creek, and alleged to be covered by a grant of the State to W. L. Love, and for damages on account of a trespass upon said land by the defendants. The cas© was referred to Hon, J. D. Murphy, wbo filed a report, which, was reviewed by Judge Carter upon exceptions.

Appeal by plaintiff from Cline, J., at October Term, 1914, of BuNCOMBE. Civil action, tried upon the ordinary issues of negligence, contributory negligence, assumption of risk, and damage. His Honor directed the jury upon all the evidence to answer the first issue as to negligence “No,” and rendered judgment dismissing the action. The plaintiff excepted and appealed.

<p>Appeal by defendant from Whedbee, J., at September Term, 1914, of "Wake.</p>

<p>1. Pleadings — Evidence.</p> <p>Tlie introduction of evidence as to tlie terms agreed upon by partners in dissolution of their business is not objectionable for the want of allegation in the pleadings, when the testimony objected to is practically set out therein.</p> <p>2. Appeal and Error — Objections and Exceptions — Harmless Error.</p> <p>The introduction of inadmissible evidence is rendered harmless when other evidence of the same character has been introduced on the trial without objection.</p> <p>B. Contract, Written — Parol Evidence.</p> <p>Where a contract which the law does not require to be in writing is partly written and partly rests in parol, evidence of the parol agreement is competent to show the entire contract when not contradictory of the written part.</p> <p>4. Same — Partnership—Dissolution.</p> <p>A written agreement for dissolution of a partnership providing that one of the partners should take charge of the assets, apply them to payment of debts, and distribute the balance among the partners, is not varied by a parol contemporaneous agreement that each of the partners should lose any amount then due him by the firm.</p> <p>5. Same — Consideration.</p> <p>An agreement between partners for dissolution of the firm, that one of them shall take charge of the business for that purpose, another buy certain of its property to enable the firm to pay its debts, and that a charge for mismanagement against a third partner would not be made, affords a sufficient consideration to support the agreement.</p>

<p>1. Pleadings — Allegations—Title to Lands.</p> <p>Where the plaintiff alleges in his complaint that he is the owner of certain lands, which is denied by the defendant, he is entitled to recover them upon the strength of any superior title he may have thereto which he is able to establish.</p> <p>2. Same — Deeds and Conveyances — Devises—Tenants in Common — Evidence-Estoppel.</p> <p>An owner of lands mortgaged a part thereof, the mortgage was foreclosed, and the feme plaintiff acquired a deed as purchaser at the sale. The defendant claimed from the same owner a part of the original tract by mesne conveyances. The lands of both parties were either adjoining or adjacent to each other. The plaintiff further put in evidence the will of the original owner disposing only of personal property, testifying that male plaintiff was one of the heirs at law. The plaintiff testified on the trial that in establishing the true divisional line under the descriptions in the foreclosure deed to feme plaintiff she would be the owner of the locus in quo. Held, the p’aintiff was entitled to recover his interest in the lands as one of the heirs of his father as tenant in common with the other heirs, if the foreclosure deed did not cover the lands in dispute; and is not concluded by his testimony that the land was included in the boundaries of said deed, and it was reversible error for the trial judge to charge the jury that his right of recovery depended entirely on the question raised by the issue as to the location of the true divisional line, according to the foreclosure deed.</p> <p>B. Actions — Tenants in Common — Title Denied — Recovery.</p> <p>A tenant in common may recover his interest in the lands held in common, on denial of his ownership, and, as against a trespasser who is a stranger to the common title, he may in proper instances be allowed to recover the entire property.</p>

Appeal by both parties from Long, J., at November Term, 1914, of Catawba. Action to recover damages, the plaintiff alleging that he bought a ticket from the agent of the defendant at Hickory on 18 August, 1913, for Winston-Salem by Barber’s Junction, and that the ¿gent guaranteed the connection at said junction; that he failed to make said connection, and after leaving said junction was wrongfully ejected from the train. These allegations were denied by the defendant.

Appeal by defendants from Long, J., at Fall Term, 1914, of Bueke. This action was brought to quiet title to land under the statute, and to remove a cloud from tbe same.

<p>Appeal by plaintiff from Adams, J., at September Term, 1914, of MONTGOMERY.</p> <p>Civil action to establish title and recover possession of a tract of land, instituted in May, 1903, and, as it now appears, only Allen Jordan was named in tbe summons as plaintiff. There seem to be facts in evidence tending to show that it was thereafter prosecuted for both Allen Jordan and his wife, Mary, but there is no entry in the record as it now appears showing that the wife was formally made a party. Both the husband and wife having died, at January Term, 1908, Molly Deaton, heir at law of plaintiffs, and J. M. Deaton, administrator of both plaintiffs, were by formal order made parties plaintiff and, in April, 1910, filed an elaborate complaint, styled an amended complaint, and again amended at August Term, 1914, in which plaintiff alleges ownership of the land, in general terms. (2) That plaintiffs and defendants claim the land under Allen Jordan and alleging facts in impeachment of defendant’s claim, on the ground of fraud. (3) That plaintiff is the own'er under and by virtue of a tax title in which the land was sold for taxes in May, 1909; was bid off by one G. S. Beaman, the bid assigned to Mary Jordan, and conveyed to her by deed of sheriff, pursuant to the tax sale; the deed bearing date 6 May, 1909.</p> <p>The defendant denied the ownership of plaintiffs, admitting, in effect, that he had acquired the title through Allen Jordan, denied the allegation of fraud, and pleaded the statute of limitations thereto, and pleaded, further, an estoppel by reason of a judgment in favor of J. P. Leach, the immediate grantor of defendant, against Allen Jordan.</p> <p>At the close of the evidence, on motion, there was judgment of nonsuit, the case on appeal stating the ruling of his Honor and the reason for it, as follows: ‘£It appearing to the court that the tax deeds introduced by the plaintiffs were executed on 6 May, 1899, and the summons in this action issued 6 May, 1903; because it was not brought within three years of the date of the execution of the sheriff’s deed. There being no evidence of fraud, the motion of the defendant is allowed.”</p> <p>Plaintiffs, having duly noted their exceptions, appealed.</p>

Appeal by plaintiff from Long, at November Term, 1914, of Mitchell. Action to recover damages for tbe alleged negligent billing of plaintiff’s intestate, Charles Buebanan. He was employed as foreman in defendant’s feldspar and mica mine, and was billed by tbe falling of a bank of overbanging dirt and rocb in tbe mine, wbicb defendant avers was caused by bis own negligent act, and not by its fault at all.

Appeal by defendant from Harding, J., at January Term, 1915, 'of Wilkes. This is a proceeding to protest an entry. The protestant alleged in her protest that she was the owner of two tracts of land, one of 45 acres and the other of 50 acres, the 50-aere tract being, as she alleged, the land covered by the David Parker grant, and that’ if the land described in the entry was within the boundaries of these two tracts of land, it was not vacant and unappropriated.

Appeal by both parties from Harding, J., at November Term, 1913, of MeckleNbukg. Held: “The right of eminent domain is granted because the public interest requires that private property shall be taken for public use under the circumstances and in the manner prescribed by law. The owner is entitled as compensation to the actual and direct damages which he may sustain by being deprived of his property.

<p>1. Appeal and Error — Questions and Answers — Objection and Exception.</p> <p>Errors assigned to ruling out questions asked a witness will not be considered on appeal unless tlie relevancy or materiality of the expected answers are made to appear.</p> <p>2. Evidence — Witnesses—Examination—Impeachment.</p> <p>A party may not impeach his own witness by examination, though he may contradict his evidence by the testimony of another witness.</p> <p>3. Master and Servant — Safe Place to Work — Negligence—Evidence—Questions for Jury.</p> <p>It is the duty of an employer to furnish his employee a safe place to work, and the evidence in this case tending to show that the plaintiff was employed to work in the defendant’s veneer factory on a narrow platform between lai’ge vats of boiling water where the logs were placed for preparation and handling, in a certain manner, and that the injury was caused by the defendant not replacing a guard rail around the vats for the safety of an employee while at work, it is held that the instructions of the court applying the rule of the prudent man were properly given upon the issue of defendant’s actionable negligence, placing the burden of proof on the plaintiff.</p> <p>i. Master and Servant — Safe Appliances — Custom—Hule of Prudent Man.</p> <p>The employer’s furnishing to his employee the customary safety appliances with which to do his work is not the sole test of his responsibility, for they should also be such as commend themselves to an ordinarily prudent man.</p> <p>5. Instructions — Trials.</p> <p>The failure of the trial judge to give requested instructions is not erroneous when he gives them substantially in his own language in his general charge.</p> <p>6. Instructions, Improper — Issues.</p> <p>Prayers for instruction not addressed to the particular issue are defective, and a refusal to give them cannot be assigned for error.</p> <p>7. Instructions — Contributory Negligence — Directing Verdict.</p> <p>In this action to recover for a personal injury and under the evidence introduced, a prayer for instruction to find for defendant upon the issue of contributory negligence, if they find the facts to be as testified, was properly refused.</p>

<p>1. Trusts and Trustees — Voluntary Subscriptions — Equity—Receivers.</p> <p>Voluntary subscriptions to build a roadway between two named points under a specified management are properly regarded as trust funds available to creditors who have made advances and supplies -to the management, considered as trustees, engaged in the prosecution of the enterprise; and where it is made to appear that it is necessary to the preservation of the fund, or to a due and proper execution of the trust, a court of equity will appoint a receiver.</p> <p>2. Trusts and Trustees — Personalty—Parol—Requisites.</p> <p>A trust in personalty may be created by parol without the use of any particular form, and it will be recognized and enforced whenever it is manifest that a trust is intended, and the subject-matter, the purpose, i. e., the disposition of the property, and the beneficiaries are designated with a reasonable degree of certainty; and while a transfer of property is usually involved, it is not an essential requirement, and a trust of this character may be and not infrequently is created when one directs that a specific debt due him or a part of it be retained or paid over by the debtor in trust for another, or gives his note for a like purpose.</p> <p>3. Trusts and Trustees — Executory Trusts — Consideration.</p> <p>A valid consideration must be shown to sustain a trust of an executory nature.</p> <p>4. Contracts — Mutual Subscriptions — Consideration.</p> <p>When persons mutually subscribe a stated sum for a definite and lawful object, the subscription of one may be regarded as a proper consideration for that of the other; and when work has been done or expenditures made or debts incurred .on the faith of such subscription, it then becomes a binding obligation.</p> <p>5. Receivers — Equity—Decrees—Collateral Attack.</p> <p>Where in the exercise of its equitable jurisdiction the court has entered judgment appointing a receiver for the administration of a trust fund, its judgment is not open to collateral attack.</p> <p>6. Trusts and Trustees — Equity—Receivers—Parties—Jurisdiction.</p> <p>One who has voluntarily subscribed with others to the building of a public road under a certain management, with the effect of creating a trust for the designated purpose, is not a necessary party to a suit in which a receiver is appointed to carry out the trust, and his presence or absence does not present a jurisdictional question.</p> <p>7. Trusts and Trustees — Voluntary Subscriptions — Receivers — Delinquent Subscribers — Right oí Action.</p> <p>Where a receiver has been duly appointed to carry out the terms of a trust created by subscriptions to build a road, he, as such, represents the rights of the management, trustee, and creditors, and the cestui que trust having made demand required by the terms of the subscription, is entitled to recover from delinquent subscribers any balance they may be due on their subscriptions.</p> <p>8. Contracts, Written — Parol — Contemporaneous Agreement — Evidence— Statute of Frauds — Subscriptions.</p> <p>The rule that when a contract, not required by law to be in writing, is partly written and partly oral, the latter may be shown, does not apply when the writing is contradicted by the oral part; and where a written list of voluntary signatures to a subscription states that the signers “subscribe and bind ourselves to pay in cash, as called for by J. M„ treasurer,” etc., and the purpose is to build a certain road, it is inadmissible for the subscriber to show by a contemporaneous verbal agreement that he subscribed upon other conditions than those contained in the writing, which had not been performed.</p>

Appeal by defendant from Justice, J., at July Term, 1914, of Haywood. This is a motion to set aside a judgment by default final, rendered in the- Superior Court of Haywood County. His Honor refused to set aside the judgment, and the defendant appealed.

Appeal by plaintiff from Justice, J., at November Term, 1914, of Cherokee. Civil action to recover on certain notes, aggregating $2,076.62, executed by the furniture company to one C. D. Mayfield, for lumber sold said company and by him discounted for value to plaintiff bank.

Appeal by defendant from Webb, J., at September Term, 1914, of Pole. This is an action to recover damages for wrongful death, the plaintiff alleging that his intestate was killed by the negligence of the defendant.

<p>Appeal by defendant from Adams, J., at December Term, 1914, of RANDOLPH.</p> <p>Civil a.ctio'n, tried upon these issues:</p> <p>1. Was the death of the plaintiff’s intestate caused by the negligence of the defendant, as alleged in the complaint ? Answer; “Yes.”</p> <p>2. Did said intestate, by bis own negligence, contribute to tbe injury causing bis death? Answer: “No.”</p> <p>3. What damages, if any, is plaintiff entitled to recover? Answer: “$2,500.”</p> <p>Defendant appealed.</p>

Appeal by plaintiff from Webb, J., at February Term, 1915, of BttN-combe. The son of the plaintiff, who was named Bub Raines, was employed by the defendant as a member of the section crew on its line between Asheville, N. C., and Spartanburg, S. C., and at tbe time of tbe accident be bad been sent out to flag an approaching train. In attempting to do so, be was struck by tbe train and killed. At tbe time be was between 15 and 16 years old.

Appeal by plaintiff from Lane, J., at March Term, 1915, of Meok-LENBURG-. Injunction proceeding, heard by Lane, J., who issued a mandatory injunction directing the defendant to apportion the school fund in accordance with chapter 149, Laws of 1913, and not in accordance with the charter of the city of Charlotte, section 207, chapter 324, Private Laws 1907. The plaintiff appealed.

Appeal by plaintiff from Harding, J., at November Term, 1914, of Caldwell. Civil action of trespass to realty, involving also an issue of title.

Appeal by defendant from Webb, J., at December Term, 1914, of Rutherford. Civil action, tried upon these issues; 1. Did tbe defendant wrongfully and illegally injure tbe plaintiff, as alleged in tbe complaint? Answer: “Yes.” 2. What actual damages, if any, is tbe plaintiff entitled to recover of defendant? Answer: “$500.” 3. Did tbe defendant wantonly and maliciously injure tbe plaintiff, as alleged in tbe complaint? Answer: “Yes.” 4.

Appeal by defendant from Peebles, J., April, 1915; from LeNOIe. Civil action, beard on case agreed and by consent. Tbe action was to recover tbe pnrcbase price of a bond issue of tbe city of Kinston, contracted to be sold to defendant, and said defendant declined to taie tbe bonds or pay tbe stipulated price, alleging tbat tbe same were invalid. There was judgment for plaintiff, and defendant excepted and appealed.

This is a motion to vacate and set aside a judgment by default final, rendered at July Term, 1914, of Haywood, which, motion was beard by Justice, J., at chambers, on 27 October, 1914, who denied the motion, and the defendant S. M. Smith appealed.

Appeal by plaintiff from Webb, J., at Spring Term, 1914, of Avery. Civil action to establish ownership and right of possession of a certain tract of land lying in Avery County.

Appeal by defendant from Adams, J., at November Term, 1914, of Row AN. Civil action, tried upon these issues: 1. Was the judgment sued on in this case procured by the fraud of the plaintiff, as alleged in the answer? Answer: “No.” 2. In wbat amount, if any, are the defendants T. J. Jerome, T. H. Yanderford, William F. Snider, and Tola D. Maness indebted to the plaintiff?

Appeal by defendants from Rountree, J., at March Term, 1915, of ANSON. Civil action, tried upon these issues; 1. Is the plaintiff the owner and holder in due course of the notes described in the complaint? Answer: “Yes.” 2, What amount, if any, is the plaintiff entitled to recover of the defendants? Answer: “$2,000, with interest on $1,000 from 1 October, 1914, and interest on $1,000 from 1 November, 1914.

<p>1. Judgments — Title to Lands — Estoppel.</p> <p>Where in an action ior the recovery of land both parties claim from the same person, H., a judgment rendered in favor of plaintiff against H., involving the title to the locus in quo, established at least a prima facie title in plaintiffs favor, and will estop the defendant from asserting his title as purchaser acquired at a foreclosure sale under a mortgage subsequently executed.</p> <p>2. Deeds and Conveyances — Defective Registration — Title—Connecting Links —Evidence.</p> <p>A power of attorney executed in another State, not passed upon by the clerk of the court, hut placed upon the registration hooks without his authority or order, is improperly registered (Revisal, sec. 999), and affords no evidence of title in an action to recover lands when relied upon by a party as a connecting link in his chain of title, for the statute requires that deeds or other instruments shall he properly probated by the clerk to authorize registration.</p> <p>3. Deeds and Conveyances — Same Source of Title — Color- — Limitation of Actions.</p> <p>Ah unregistered deed is not color of title when the parties to an action for the recovery of land are claiming under the same source.</p> <p>4. Judgments — Title to Lands — Deeds and Conveyances — Estoppel.</p> <p>A judgment in an action involving the title to land has the force and effect of a deed so as to become a connecting link in the chain of title of the successful party and those claiming under him, and estops the adverse party and his privies.</p>

Appeal by plaintiff from Ilarding, J., at February Term, 1915, of Catawba. Controversy without action. Judgment was rendered for the defendant, and the plaintiff appealed.

Appeal by plaintiff from 0. H. Allen, J., at February Term, 1915, of New Hamwer. Action to recover the purchase price of a certain lot of land which formerly belonged to Philip Christ. The defendant refused to pay for the land upon the ground that the plaintiffs could not convey him a good title. The plaintiffs are John Haar, executor of Mary Christ, and Katherine Wegermann, the only heir at law of Philip Christ.

Auueai, by defendant from Justice, J., at November Term, 1914, of Cheeokee. Civil action to recover damages for negligence on part of the defendant telegraph company.

Apeeal by defendant from Rountree, Jat March Term, 1915, of ANSON. Civil action, tried upon these issues: 1. Is the plaintiff the owner and holds in due course the notes described in the complaint? Answer: “Yes.” 2. What amount, if any, is the plaintiff entitled to recover of the defendant? Answer: “$935, with interest from 12 October, 1914.” The defendant introduced no evidence. His Honor instructed the jury. There was no exception to the evidence or the charge of the court.

Appeal by defendant from Carter, J., at November Term, 1914, of PASQUOTANK. Action upon a contract of insurance upon a horse. Tbe defendant relied upon tbe breach of certain conditions in tbe policy as a defense, and tbe plaintiff contended that these conditions bad been waived by the defendant. Evidence was introduced supporting tbe contentions of tbe parties. Tbe jury rendered tbe following verdict: 1.

Appeal by defendant from Carter, J., at December Term, 1914, of CHOWAN. Civil action for injury to plaintiff’s automobile at a railroad crossing. On tbe three ordinary issues in actions of this character, negligence, con-tributary negligence, and damages, there was verdict for plaintiff. Judgment on verdict, and defendant excepted and appealed.

Appeau by defendants from Long, J., at December Term, 1914, of WASHINGTON. Civil action, tried upon these issues: 1. Were the plaintiffs, at the time of beginning this action, the owners of tbe land in controversy represented on tbe Ange map from red 1 to red 2 and back to 1? Answer:. “Yes.” 2. If so, did tbe defendant trespass on said land? Answer: “Yes.” 3. If so, wbat damages are plaintiffs entitled to recover?

<p>Appeal by defendant from Connor, J., at July Special Term of Hert-eoed.</p> <p>Action to recover damages for negligence in tbe transmission and delivery of a telegram.</p> <p>Tbe defendant denied tbat it received tbe telegram.</p> <p>Tbe following is tbe evidence relied on by tbe plaintiff to prove a delivery to tbe defendant:</p> <p>J. J. House testified as follows: “Dr. Green wrote tbe telegram after we left Ahoskie, and we tried to send it at every station until we got to Wbaley, Virginia. It was early in tbe morning and tbe stations were not open. When we reached Wbaley, Dr. Green gave tbe telegram to J. H. Ellen; be came to tbe car, bareheaded; I don’t know where be came from; I bad known Ellen seven or eight months. When I saw Ellen before, be was at Aulander. I saw him in the telegraph office.</p> <p>“Ellen received tbe telegram and Dr. Green paid him for it. Dr. Green read tbe message to J. H. Ellen, and said to him: (Tbat tbe message was important; tbat we wanted it sent at once; tbat my wife’s life depended upon this.) Tbe message was taken by Ellen. We paid Ellen 25 cents.</p> <p>“I was present when tbe message was delivered to J. H. Ellen. Mr. Brinkley, tbe baggage master in charge of tbe car in which we were riding when we reached Wbaley, called Ellen. Dr. Green banded tbe message to Ellen. I am quite sure I beard all that passed between tbe three — tbat is, Brinkley, Dr. Green, and Ellen — while they were together.”</p> <p>Pattie E. House testified: “I beard Dr. Green read tbe message to some one. I was in tbe baggage car. I remember to whom tbe message was addressed. Dr. Green told tbe person to send tbe message at once; tbat delay would probably be tbe cause of my death. I cannot say tbat any one replied tbat be understood tbe message.”</p> <p>J. N. Yann testified as follows: “I have known J. H. Ellen three or four years. I knew him in 1911. I think I was in Whaley in fall of 1911. I have seen Ellen at Whaley. I don’t know that I was there in December, 1911. I think I saw Ellen in 1911.”</p> <p>Q. “What was'he doing when you saw him?”</p> <p>A. “He was in the employment of the Atlantic Coast Line Eailroad Company. I never saw him receive or send messages. The Western Union Telegraph Company’s office and the Atlantic Coast Line Eailroad Company’s office at Whaley are all in one. I frequently saw J. H. Ellen around there. I cannot say what he was doing when the trains passed, but I saw him frequently in the office. He came from the office — a little barred- off place — to the train. I have seen him at Aulander. Ellen was employed by the A. C. L., to the best of my knowledge and belief.”</p> <p>Dr. Green testified: “I wrote a telegram to Dr. Payne. We tried to send it at the first station we found open. I don’t remember the words of the telegram. I gave it to Mr. Brinkley, the baggage master. It was early in the morning and only two stations were open. Whaley- was the first. I was in the baggage car with Mrs. House, Mr. House, and Mr. Brinkley. I first gave the telegram to Mr. Brinkley. When we got to Whaley a man came out to the door. He had papers in his hand. The man took the telegram and signed a paper. That is the man (pointing to a man in the courtroom). Mr. Brinkley said: £I have a telegram for you,’ and asked him to read it. I took the telegram and read it to him. He was standing at the car door. Brinkley understood the message and told the man to send it off. I paid the man 25 cents. He accepted 25 cents and said he would send off the telegram as soon as he could.</p> <p>“I have stated all that I remember that occurred between J. H. Ellen and myself. I read the telegram to him and paid him 25 cents for same. He said he would send it at once. I wrote it between Ahoskie and Tunis, I think; I am not sure whether the train was running or not when I wrote it.</p> <p>“Ellen did not come into the car. He was standing at the car door, and I was in the door, with Mr. Brinkley standing by me. I don’t know how far the telegraph office is from the train; I suppose some 20 feet." I did not carry the message to the office, because I did not have time. I don’t think I told him it was for Mrs. House.”</p> <p>At the conclusion of the evidence the defendant moved for judgment of nonsuit, which was denied, and the defendant excepted.</p> <p>There was a verdict and judgment for the plaintiff, and the defendant appealed.</p>

Appeal by plaintiff from Allen, J., at October Term, 1914, of New HANOVER. Civil action, tried upon these issues: 1. Is the plaintiff as tenant in common the owner in fee of the lands in dispute and described in the complaint, and entitled to the possession thereof? Answer: No.” 2. Is the plaintiff’s claim barred by the statute of limitations? Answer: . 3. What damages, if any, is plaintiff entitled to recover of the defendant, Answer:.

Appkal by defendant from Rountree, J., at September Term, 1914, of DURHAM. Civil action, tried upon these issues: 1. Is the plaintiff the duly qualified administratrix of Patrick H. Massey? Answer: “Yes.” 2. Was the plaintiff’s intestate killed by the negligence of defendant’s lessee, as alleged in the complaint? Answer: “Yes.” 3. If so, did plaintiff’s intestate by negligence on Ms part contribute to Ms death? Answer: “No.” 4.

<p>Judgment — Strangers—Estoppel—Divisional Line of Lands — Chain of Title-Evidence.</p> <p>A judgment roll is incompetent as evidence to estop in a separate action one who was not a party from claiming & different divisional line of lands than therein established, though held, in this case, as competent to be shown as a mere link in the plaintiff’s chain of title.</p>

Appeal by interpleader from Lane, J., at November Term, 1914, of ANSON. Civil action. There was a judgment against the interpleader, J. A. Parker, for the sum of $208.34, from which he appealed. The following are the issues and findings of the jury: 1. Was the note and mortgage transferred by Harrell Eros. Company to J. A. Parker, as alleged? Answer: “Yes.” 2. What amount, if anything, is the defendant J. N. Burris due J. A. Parker?

Appeal by defendant from order of Rountree, J., made 6 March, 1915; from ÁNSON. Civil action for divorce a mensa et thoro, beard on motion of tbe plaintiff for alimony pendente lite. From tbe order and judgment rendered the defendant appealed.

<p>Railroads — Trials—Instructions—Appeal and Error — Harmless Error.</p> <p>In this action to recover of a railroad company damages for tlie negligent killing of the plaintiff’s intestate, an employee, the verdict was in plaintiff’s favor, and exception to the charge is taken upon the small amount of the damages awarded, contended to have resulted hy the jury’s diminishing the amount in considering the question of contributory negligence. -Construing the charge as a whole, it appears that only the defendant’s negligence was considered, and no reversible error is found.</p>

Appeal by defendant from Shaw, J., at December Term, 1914, of GrASTON. Civil action to recover for negligent injury. There were facts in evidence tending to show that, in May, 1911, plaintiff, driving a one-horse wagon in the town of Cherryville, was injured by reason of negligence on the part of defendant, operating an automobile on the streets of the town.

Appeab by defendant from Shaiu, J., at November Term, 1914, of MeckleNbueg. Action to recover tbe amount of an account for advertising. There was a judgment in favor of the plaintiff, and the defendant excepted and appealed.

Appeal by defendant from Shaw, J., at September Term, 1914, of GASTON. Civil action, brought to recover two mules alleged to have been wrongfully detained by tbe defendant, and damages alleged to have been sustained by tbe plaintiff. Tbe following are tbe issues submitted: 1. Is tbe plaintiff tbe owner and entitled to tbe possession of tbe two black mare mules, as alleged in tbe complaint? Answer: “Yes.” 2. What is tbe value of said mules? Answer: “$450.” 3.

Appeai, by plaintiff from judgment rendered by Justice, J., at chambers, 30 December, 1914; from Swaiít. Action of trespass for damages for the wrongful cutting of timber upon certain lands described in the pleadings. The defendants not only denied the plaintiff’s title, but pleaded a counterclaim for damages sustained by them by reason of the wrongful issuing of an injunction.

Appeal by plaintiff from Webb, J., at February Term, 1914, of BuN-C0MBE. Civil action. At tbe conclusion of tbe plaintiff’s evidence tbe defendant moved for judgment as of nonsuit, which motion was allowed. Tbe plaintiff excepted and appealed.

<p>Appeal by plaintiff from Long, J., at June Term, 1914, of Burxe.</p>

Appeal by defendant from Webb, J., at August Term, 1914, of MacoN. Action to recover tbe sum of $2,500, alleged to be due for services in procuring options or other contracts under which tbe defendants would be able to obtain tbe title to tbe Angel Copper Mine. Tbe defendants denied tbe contract as alleged by tbe plaintiff. There was a verdict and judgment for tbe plaintiff, and tbe defendants appealed.

Appeal by defendant from Harding, J., at December Term, 1914, of Burke. Action to recover a balance alleged to be due on three notes of $400 each, executed by tbe Gaitber Lumber Company, the payment of which was assumed by the defendant Morrison, president of said company. Tbe questions in controversy between tbe parties were: 1. Whether tbe Gaither Lumber Company was indebted tó tbe plaintiff in tbe sum of $214.12, in addition to tbe three notes. 2.

<p>Slander — Justification — Evidence — Punitive Damages — Burden of Proof— Good Faith — Express Malice.</p> <p>Where in an action for slander the defendant pleads justification, hut fails to introduce evidence of the truth of the lihelous matter or that his plea was made in good faith, the issue of his good faith is not presented; for the burden of proof of such matters is upon the defendant; and in this case the charge of the court was correct that the plea of justification unproved or unsupported by the evidence could be considered by them upon the question of aggravation under the issue of punitive damages, having charged that such damages could not be awarded unless express malice should be found.</p>

<p>Criminal law — Master and Servant — Tenant or Cropper — Interpretation of Statutes.</p> <p>One who is a tenant or cropper of another is not his servant, within the meaning of Revisal, sec. 3365, making it an indictable offense to entice a servant to leave his master.</p>

Appeal by defendant from Ferguson, J., at September Term, 1914, of Edgecombe.

Appeal by defendant from Cline, J., at September Term, 1914, of MADISON. Indictment for obstructing a way. It requires only a consideration of tbe following facts, which appear in the record, to understand the questions presented. We give here a statement of them which, we think, presents the case fully and fairly. This was a criminal action brought by the State at the instance of I). P. Miles, prosecutor, against the defendant R. H. Haynie.

<p>Appeal by tbe State from Peebles, J., at October Term, 1914, of CRAVEN.</p>

Appeal by tbe State from Garter, J., at October Term, 1914, of Hyde. Criminal action, beard on appeal from a justice’s court.

<p>Appeal by defendant from Peebles, J.; at September Term, 1914, of CRAVEN.</p> <p>Tbe prisoner, Clyde Kennedy, was indicted.in tbe court below, witb Alexander Curtis and Sidney Gautier, for tbe murder of E. ~W. Sar-landt, and all were convicted of murder in tbe second degree.</p> <p>Tbe court charged tbe jury, among other things, that there was no evidence of manslaughter in tbe case. In this connection it becomes necessary, and will suffice, to state only a part of tbe prisoner’s own testimony, which is as follows: “I was sitting witb my bat in my bands in this position, and be walked up and said, ‘Your dog bit me,’ and I said, ‘It ain’t nothing of tbe kind,’ and be said, ‘You’re a G— d— liar; be did bite me.’ I said, ‘It ain’t no such d— thing.’ In tbe meantime, while I was sitting that way, be tried to bit me in tbe face. ■ I jumped up and got a lick on my right shoulder. As I jumped up be kicked me; just did bit me back here. I asked him what be was trying to do — to kill me, or what. He set tbe bottle down, then came at me witb bis knife in bis right band and cut at me, and when I jumped back be kicked at me. As I was backing be still followed me up till I got to tbe side of tbe fence. He cut my shirt twice. I didn’t know be cut my shirt; I bad it open. Tbe last time be cut me was just before I got tbe paling off. I felt something sting. I found out there was no way to get away, and grabbed tbe paling off tbe fence. He was about 2 feet from me when I broke tbe paling — coming to me all tbe time. He was cutting at me and kicking at me at tbe same time. I pulled tbe paling off tbe fence and tbe paling broke. I bit at him and I imagine I bit him about tbe face somewhere. I couldn’t see, as it was dark out there. When be struck bis knife in my bat — I went to pick up my bat after I bad bit him. As I started to pick up my bat, be came at me again. He was right on me then. I didn’t bit him then witb tbe paling. He started back, and it looked as if be started to catch against tbe post. He fell on bis side and be rolled over once or twice, and we all left there then. I made a remark that if I hadn’t bit him witb that paling be'would have killed me.” And again, on cross-examination, be testified: “I didn’t do anything at all with, my left hand. Yes, the one hand was sufficient. I don’t know where I hit him. I didn’t hit him but once. I don’t know that his skull was broken unless he did it when he came up against the bench. I don’t 'know whether he broke it or not. I didn’t hit him after he got on the ground. Mr. Rowe came along after we went off and came back. I didn’t tell Mr. Rowe this man was trying to kill me, because I didn’t think there was anything much the matter with him. If I had, I’d have tried to take him to the hospital or something. No, he wasn’t lying on the ground until I hit him. He called me a G— d— liar. No, that didn’t make me mad; I have taken d— liar before. It didn’t make me mad, because I knew the man. It didn’t worry me any. It didn’t pass through my mind after he had called it. I said it wasn’t any such d— thing. No, it didn’t make me mad- when he hit me. I tried to get out of his way, but I couldn’t. He was standing like this: like this is the bench, and he was along here, and I was standing here. I was sitting like this, and he tried to hit me in the face, and then he kicked me and then kept on following me up with a knife. He wasn’t so drunk. I couldn’t have walked away. I don’t say he would have killed me, but I would have been cut to pieces. I had to go about as far from here to the middle of that door to get the paling.”</p> <p>There was evidence on the part of the State which contradicted that of the defendant and tended to show that the prisoner was either the aggressor in'the beginning of the difficulty or, if not, that he and the deceased cursed each other and both entered willingly into the fight, the deceased armed with a knife and the prisoner with the paling, with which he struck the deceased several blow's both before and after he was prostrate on the ground.</p> <p>Judgment was entered on the verdict, and the prisoner, Clyde Kennedy, appealed.</p>

Appeal by tbe State from Bond, J., at July Term, 1914, of Wake. Indictment for refusing to allow an inspection of certain books containing a record of shipments and deliveries to consignees of intoxicating liquors in violation of Public Laws 1913, cb. 44, sec. 5.

<p>1. Criminal law — Fornication and Adultery.</p> <p>Connected and relevant circumstances leading up to and tending to show the guilt of the parties charged with fornication and a,dultery are competent to he submitted to the jury as evidence of the offense charged, as where a married man does not provide for his wife and children or live with them, hut lives with an unmarried woman on his own lands, eats with her, works in the field with her, illegitimate children are horn to her under such circumstances, who call the man their father.</p> <p>2. Same — Two Tears- — Former Relations — Evidence.</p> <p>The fact of fornication and adultery of the parties charged with this crime may only he shown within two years before the issuance of the warrant, but improper relations of this character theretofore existing is competent evidence as explanatory of their continued relationship within that period.</p> <p>8. Appeal and Error — Trials—Broadside Exceptions — Instructions — Special Requests.</p> <p>A general exception to the charge of the judge to the jury, without particularizing the errors complained of, will not he considered on appeal; and where the exception is to the failure of the trial judge to instruct more fully, in his general charge, upon certain phases of the evidence in the case, it can only he made available when special and proper requests were tendered in time and refused by the court.</p> <p>4. Criminal Law — Fornication and Adultery — Existing Marriage — Evidence.</p> <p>Upon a trial for the criminal offense of fornication and adultery, it is competent to show that the husband had a living wife from whom he had not been divorced, as bearing upon the charge in the indictment that the defendants were not married to each other.</p>

<p>Appeal by defendant from Peebles, J., at January Term, 1915, of LENOIR.</p>

<p>Appeal by defendant from Daniels, J., at Fall Term, 1914, of Lenoir, from judgment sentencing ber to six months imprisonment.</p>

Appeal by defendant from Daniels, J., at October Term, 1914, of ONSLOW. Criminal action. “On bill of indictment for tbe slander of Bessie Marshburn, an innocent and virtuous woman.” E. E. Hancock, a witness for the State, testified as follows: “I know defendant and Bessie Marshburn.

<p>1. Physicians — Licensed Practitioners — Hondrug-giving Practitioners — Examination — License—Criminal Law.</p> <p>Under the provisions of chapter 92, Laws 1913, amending chapter 764, Laws 1907, Pell’s Revisal, secs. 4505a, 4505h, 4505m, those who practice and receive pay for the treatment of human diseases without the use of drugs, and who are not licensed osteopaths, are required to take the examination and receive the license provided for in the later statute, with the exceptions therein stated, i. e., licensed physicians, Christian scientists, masseurs or following the orders of a licensed drug-giving physician; hence one engaged in the practice of “chiropractic and suggesto-therapy,” or treating human diseases by manipulating the spine, or treating nervous diseases by mental suggestion, without the examination and license prescribed, are guilty of a misdemeanor.</p> <p>2. Same — Monopoly—Constitutional Law.</p> <p>Laws 1907, chapter 764, Pell’s Revisal, secs. 4505a, 4505h, 4505m, as amended by chapter 92, Laws 1913, extending the requirement of examination and license to other nondrug-giving practitioners for compensation, than osteopaths, with the exceptions stated in the later statute, making the violation of its provisions a misdemeanor, was for the protection of the people, and was not intended to give, nor does it give, those who comply with the law a monopoly, inhibited by the Constitution.</p>

Appeal by defendant from Lyon, J., at August Term, 1914, of Rock-INGHAM.

<p>1. Criminal Law — Frivolous Prosecution — Prosecutors—Costs—Notice—Constitutional Law — Statutes.</p> <p>It is necessary for the trial court, in order to adjudge the prosecution of a criminal action to he frivolous and malicious and tax the costs against the prosecutors who have employed attorneys to assist the solicitor, to give the prosecutors notice of such action and hear the matter according to the “law of the land.” Revisal, sec. 1295, section 17 of the Bill of Rights, N. C. Const.</p> <p>2. Constitutional Law — Bill of Bights — Due Process.</p> <p>The “law of the land” as used in our Bill of Rights is equivalent to “due process of law,” requiring in its essential elements that notice and opportunity to defend be given the party accused.</p> <p>B. Same — Appeal and Error — Findings of Court — Frivolous Prosecution-Costs — Procedure.</p> <p>Where the trial judge has dismissed a criminal action as being frivolous and malicious, and taxed the prosecutors with costs, and it appears from his findings of record that he has done so without any proper consideration of their affidavits in support of their position, and relevant to the issue, so as to deprive them of the benefits of due process of law, his order will be set aside on appeal, leaving the matter open for proper adjudication. S. v. Hamilton, 106 N. C., 660, cited and distinguished.'</p>

Appeal by defendant from Lane, J., at November Term, 1914, of STANLY. Indictment for murder of one John (called Johnnie) Morton. It was proved that, on 7 March, 1914, about 5 p. m., at Oakboro, in said county, Johnnie Morton was shot and mortally wounded by Valter Kennedy, and died of the wound about four days thereafter.

Appeal by plaintiff from Webb, J., at March Term, 1915, of Binsr-COMBE.

The prisoner was convicted before Shew, J., at June Term, 1914, of MeckleNBURG, of murder, in tbe first degree, of Sidney Swain, wbo was killed by a blow on tbe bead witb an iron pipe, after midnight on Saturday, 16 April, 1914, while going home from bis store.

Appeal by State from Qline, J., at January Term, 1914, of Haywood. Indictment against defendant sheriff of Burke County for failure to return certain executions, heard upon motion to quash. The court quashed the bill, and the State appealed.

<p>Appeal by defendant from Cline, J., at January Term, 1915, of Hat-wood.</p>

<p>Appeal by defendant from Adams, J., at October Term, 1914, of IREDELL.</p> <p>Tbe prisoner was convicted of burglary in tbe first degree and sentenced to be electrocuted, and from tbe judgment pronounced against bim appeals.</p> <p>Tbe prisoner requested bis Honor to instruct tbe jury tbat tbe evidence was not sufficient to justify a conviction and tbat tbe jury-must return a verdict of not guilty, wbieb was refused, and tbe prisoner excepted, and tbis is tbe only exception presented by tbe appeal.</p>

<p>Appeal by defendant from Adams, J., at September Term, 1914, of Rowast.</p> <p>Indictment for larceny. Tbe defendant was convicted by tbe jury, and from tbe judgment pronounced appeals to tbis Court.</p>

Appeal by defendant from Cline, J., at November Term, 1914, of EuNCombe. Defendant was indicted and convicted for selling intoxicating liquors to one B. H. Graham. From the judgment and sentence of the court the defendant appealed.

Appeal by defendant from Carter, J., at June Term, 1915, of Wil-SON. This action was brought to recover $130 and interest due for a lot of White Crown jar caps sold and delivered to tbe defendants.

Appeal by defendant from Shaw, J., at June Special Term, 1915, of PASQUOTANK. This is an action of trespass for unlawfully entering upon and occupying certain land in Elizabeth City under the wrongful claim that it is a public street or alley, and without having taken proper proceedings to condemn the same and acquire the same or an easement therein.

<p>Appeal by plaintiff from Justice, J., at February Term, 1915, of BEAUFORT.</p> <p>Civil action for trespass on land.</p> <p> </p>

. Appeal by defendants from Ferguson, J., at April Term, 1915, of HERTFORD. Civil action beard on motion to discharge an attachment and dismiss the action.

Appeal by defendant from Whedbee, J., at March Term, 1915, of CAMDEN. This is an action to recover land, and involves the title to tracts Nos. 1 • and 4 of the juniper timbered part of that portion of the Dismal Swamp called “The New Lebanon Division,” and the only question involved in the appeal is whether the plaintiff made out a prima facie case to go to the jury upon the question of title, to .either or both of said tracts.

Civil actioN, beard before 0. II. Allen, J., at Oxford, on 27 July, 1915, upon an application for an injunction. Upon tbe granting of the injunction defendants appealed.

<p>1. Contracts, Written — Parol Evidence.</p> <p>A contract that the law does not require to be in writing may partly be in writing and partly rest by parol, but parol evidence is not permissible to vary or contradict the written part.</p> <p>2. Contracts — Vendor and Purchaser — Warranty—Principal and Agent.</p> <p>A written contract or sale of a thresher and engine, containing the warranty that they are well made, of good material, and durable with proper care, and that representations made by any one as an inducement of purchase will not be binding upon the vendor, does not by its terms or implication extend the warranty to include that the engine will successfully operate plows; and any verbal representations made by the seller’s agent at the time, or thereafter, without the ratification of the principal, are incompetent as evidence.</p> <p>3. Contracts — Warranty—Conditions—Compliance.</p> <p>Where a sale of merchandise is made under a certain warranty, specifying that the purchaser shall give the goods three days trial, and should they fail to fulfill the warranty, written notice shall be given at once to the seller or his agent, it is the duty of the purchaser to give the required notice within a reasonable time in the event of a breach of warranty.</p> <p>4. Contracts — Warranty Implied — Value.</p> <p>In an action for breach of warranty of the goods sold, the principle that there is an implied warranty that the goods shall be of some value has no application when it appears that the purchaser uses them for the purposes for which he purchased them. Furniture Co. v. Mfg. Co., ante, 41, cited and distinguished.</p>

<p>Appeal by plaintiff from Bond, J., at June Term, 1915, of Chatham.</p>

Appeal by plaintiff from Justice; J., at February Term, 1914, of Beaueokt. Civil action on appeal from a justice’s court and tried on case agreed.

Special PROCEEDING, finally beard by Bond, J., at May Term, 1915, of WayNe.

Appeal by plaintiff from Justice, J., at the January Term, 1915, of PERQUIMANS. This action was brought to set aside two deeds for three tracts of land: (1) The B. F. Lamb Home Place, containing 30 acres. (2) The swamp land containing 210 acres, and (3) the pocosin land containing 110 acres. The deeds were made by the plaintiff to the defendants for one-fourth interest in the said lands, which plaintiff inherited from his father.

Appeal by defendant from Garter, J., at the May Term, 1915, of Edgecombe. Civil action.

<p>Appeal by plaintiff from Justice, J., at Spring Term, 1915, of Peb-QUIMANS.</p> <p>Tbe facts are sufficiently stated in tbe opinion of tbe Court.</p>

Appeal by defendant from Justice, J., at tbe February Term, 1915, of PASQUOTANK. . • Tbis action was brought to recover of W. Gr. Graither, Jr., trustee, six hundred and thirty-nine 86-100 dollars, it being the balance of two thousand dollars deposited with him by agreement of the LeEoy Steamboat Company and the defendant to pay off certain liens on two steamers, Virginia and Ilaven Belle, which were sold by the LeEoy Steamboat Company to the defendant.

<p>1. Taxation — Counties — Dog Tax — Licenses — Police Regulation — Constitutional Law.</p> <p>A statute imposing a specified tax upon all persons owning or keeping a dog witbin a certain county is for the privilege of keeping the dog therein, and comes under the police regulations of the county. It is therefore constitutional and valid, and will not be restrained.</p> <p>2. Same — Uniformity.</p> <p>The constitutionality of a legislative enactment uniformly imposing a tax upon persons owning or keeping dogs within a certain county is not affected by the fact that the act does not apply to all counties of the State. ■</p> <p>0.' Taxation — Distribution of Proceeds — Legislative Discretion — Constitutional Law.</p> <p>The distribution of the proceeds derived from the imposition of a tax is a matter within the discretion and judgment of the Legislature, and will not affect the constitutionality of the act.</p>

<p>Appeal by defendant from Lyon, J., at the August Term, 1915, of HERTFORD.</p>

<p>Appeal by plaintiffs from Harding, J., at May Term, 1915, of Beau-EORT.</p>

<p>Appeal by defendant from Webb, J., at November Term, 1914, of HENDERSON.</p>

Appeal by defendants from Harding J., at tbe May Term, 1915, of Beaufort. This is an action to recover land, tried on the following agreed statement of facts: 1. That the plaintiff is the owner and entitled to the possession of the six acres of land described in section 4 of the complaint, conveyed to him by R. O. Gurganus, unless he is estopped and barred of recovery of same by reason of the facts hereinafter set forth. 2.

Appeal by Johnston, trustee, from Garter, J., at the June Term, 1915, of Edgecombe. Civil action to recover a trust fund. Held: as follows: “A decree was entered as set forth in said paragraph, appointing Henry Johnston trustee of the fund of $445.10 to be held for Pattie Pippen, and Dr. Julian M. Baker was appointed trustee for the sum of $445.09 to be held for Mollie Hobgood, but the terms of trust in said decree read as follows, viz.: Pay to J. M. Baker…

Appeal by defendants from Shaw, J., at tbe June Special Term, 1915, of PASQUOTANK. Civil action tried upon these issues: 1. Did tbe defendant hire tbe barge from tbe plaintiff, as alleged? Answer: “Yes.” 2. Was tbe said barge, at tbe time of delivery to tbe defendant, in a proper condition to be used as contemplated by tbe parties? Answer: “Yes.” 3. What amount is due for rent of barge? Answer’: “$175, with interest from 13 April, 1914.” 4.

Appeal by defendant from Ferguson, J., at the Spring Term, 1915, of Halifax. Plaintiff sued for damages on account of tbe alleged negligent failure to deliver a telegram in the following words and figures: Ohablotte, 4 May, 1914. To Beccia Medlin, Care Mill, Rosemary, N. C. Come home at once. Your mother is dead, Elizabeth Edwards. Eush. (Signed) S. C. McCall.

<p>Appeal by defendant from Justice, J., at the February Term, 1915, of PasquotaNK.</p> <p>Proceedings for sale of land for division, instituted by plaintiffs before Superior Court Clerk of Pasquotank County. Defendant having pleaded sole seizin of the land in Cora L. Mason, the cause was transferred to the civil-issue docket of Superior Court of said county.</p> <p>At close of plaintiff’s testimony, on motion, there was judgment of nonsuit, and plaintiff excepted and appealed.</p>

<p>1. Telegraphs — Principal and Agent — Telephones—Local Operator.</p> <p>Where the local operator of a telephone company at a point where a telegraph company has no office, is also the agent of the latter company to receive messages there and telephone them to a near-by town, to the office of the telegraph company for transmission and delivery, the receipt by the local operator of such messages is a receipt thereof by the telegraph company, making it liable for the actionable negligence of the local operator in not promptly telephoning them.</p> <p>2. Same — Trials—Evidence—Statutes.</p> <p>Where there is evidence tending to show that the local agent of a telephone company customarily received messages from its subscribers, to be telephoned to the office of a telegraph company at a near-by town for transmission and delivery over the latter’s system, made out tickets therefor against the telegraph company and collected for the telegrams at the end of the month and remitted the money to the telegraph company, it is held sufficient to be submitted to the jury upon the question of whether the agent of the telephone company was also the agent for the telegraph company. Revisal, sec. 440(1).</p> <p>3. Pleadings — Variance—Proof—Statutes.</p> <p>Where the complaint in an action against a telegraph company for damages for its negligent delay in the transmission and delivery of a message alleges that the defendant received the telegram sued on at its office at A., and the evidence tends to show that it was received at B., a near-by point, and telephoned to A. by the defendant’s agent_there, and there is nothing to indicate that the defendant was misled or was unprepared to meet the evidence introduced, or was thereby prejudiced: Held, the variance between the allegation and the proof was neither material nor fatal. Revisal, sec. 515.</p>

Appeal by the defendant and the receivers from Garter, J., at the April Term, 1915, of Nash. Petition in the cause. From the judgment rendered the Manufacturers Finance. Company, a creditor of the defendant, together with the receivers, appealed.

<p>1. Corporations — Certificates — Equitable Owners — Stock Transfer — Receivers.</p> <p>A purchaser of certificates of corporate stock at the sale by an administrator of a deceased owner to make assets, and deposited by the purchaser with another as collateral to his note, is the equitable owner, and may maintain a suit for the appointment of a receiver in insolvency proceedings, though the stock has not been transferred on the books of the company from the name of the original owner.</p> <p>2. Corporations — Certificates—Executor’s Sale — Title of Purchasers — Devises.</p> <p>Where certificates of stock of a deceased owner have been sold by his executor to make assets to pay his debts, the effect of the will upon whether the legatee of the stock thereunder could have acquired it is not material as affecting the rights of the purchaser at the sale.</p> <p>8. Corporations — Majority Interests — Mismanagement—Rights of Minority— Receivers — Equity.</p> <p>While ordinarily the remedy for mismanagement of a corporation by its directors should be sought within the corporation, a different rule applies when the acts complained of are done by a majority and controlling interest, which can perpetuate the election of the same directors and manage the corporation for their own benefit; for then the minority stockholders are entitled to resort to a court of equity for relief.</p> <p>4. Corporations — Insolvency—Proof Sufficient.</p> <p>In an action by minority stockholders of a corporation to appoint a receiver in dissolution proceedings, it is unnecessary to establish a state of absolute and irremediable insolvency, under our statute; but it is sufficient to show that the majority in control are using the assets for their own benefit, receiving salaries, contrary to the provisions of the charter, when none are earned; investing corporate assets in enterprises of doubtful solvency controlled by them, and generally that the company is practically insolvent, and nothing can save it from mismanagement except the appointment of a receiver.</p> <p>6. Corporations — Receivers—Court’s Discretion — Appeal and Error — Practice.</p> <p>The selection of a receiver for an insolvent corporation is a matter largely in the discretion of the trial judge and will not generally be reviewed on appeal unless this discretionary power has been greatly abused; and though the practice of appointing the plaintiff’s attorney as such receiver is not commended, he will not be removed, as a matter of law, on appeal, though, as any other receiver, he may be removed upon application to the proper judge of the Superior Court. Fisher v. Trust Go., 138 N. C., 102, cited and approved.</p>

<p>Appeal by plaintiff from Carter, J., at tbe June Term, 1915, of Wil-SON.</p> <p>Civil action, beard on appeal from tbe comity court of Wilson County, and on motion to dismiss. A very succinct statement of case, making clear presentation of tbe question raised, is given in briefs of counsel; tbat of appellant being as follows:</p> <p>“Tbe action was instituted in tbe county court for Wilson County. On 15 December, 1914, tbe plaintiff, a corporation with its borne office in Wilson County, instituted tbis action against tbe defendant, a corporation, whose borne office is in Buncombe County. Tbe summons, under tbe seal of tbe county court for Wilson County, was served on tbe defendant by tbe sheriff of Buncombe County on 18 December, 1914; tbe complaint declared on a breach of contract theretofore existing between tbe plaintiff and tbe defendant, and demanded tbe recovery of $166.25 as damages for tbe breach of contract.</p> <p>“In tbe county court for Wilson County tbe defendant entered a special appearance and moved to dismiss tbe action for tbat tbe court was exercising a jurisdiction concurrent witb tbe jurisdiction of justices of tbe peace of Wilson County, and, under sections 1447 to 1450 of tbe Revisal, could not send its summons out of Wilson County, and having never properly acquired jurisdiction of tbe person of tbat defendant, did not have power to try tbe case. Tbe motion was overruled, tbe defendant excepted, and tbe trial of tbe case was bad on its merits, resulting in a judgment adverse to tbe defendant, from which judgment tbe defendant appealed to tbe Superior Court of Wilson County.</p> <p>“Tbe special appearance and motion to dismiss by tbe defendant were renewed in tbe Superior Court, and bis Honor, Judge Carter, sustained tbe motion of tbe defendant; whereupon tbe plaintiff excepted to tbe judgment dismissing tbe action, and appealed to tbe Supreme Court.</p>

Appeal by defendant from Justice, Jat tbe February Term, 1915, of Beaufort. Action to remove a cloud from title. In 1898 Isaiah. Rowe was the owner in fee of the land in controversy. On 1 May, 1898, the land was sold for taxes and on 3 March, 1899, the sheriff executed a deed therefor to the defendant Warren. Warren failed to make the affidavit and to give the notice required by sections 64 and 65, chapter 169, Laws of 1897.

<p>1. Bills and Notes — Negotiable Instruments — Signature on Back — Indorsers —Dishonor—Notice.</p> <p>One who signs his name on the hack of a negotiable instrument, without indication that he did so in any other capacity, is deemed an in-dorser and is entitled to notice of dishonor.</p> <p>2. Bills and Notes — Negotiable Instruments — Indorsers—Dishonor—Notice— Waiver.</p> <p>Notice of dishonor may be waived by an indorser of a negotiable paper before or after maturity thereof by express words or by necessary implication, and when so waived, notice of dishonor need not be giyen. Re-visal, secs. 2239, 2259, 2260, 2261, 2270.</p> <p>8. Same — Extension of Time — Maturity—Agreement—Guarantors of Payment.</p> <p>Where it is expressly agreed upon the face of a negotiable note given by the maker to the bank that “the subscribers and indorsers hereby agree to continue and remain bound . . . notwithstanding any extension of time granted to the principal, hereby waiving all notice of such extension of time,” and upon maturity an indorser thereon agrees to a further extension, and notice of dishonor is not given him when the instrument again matures, and he seeks to avoid liability for that reason: Held, his having notice of dishonor and nonpayment of the note at its original maturity and consenting to the extension make his liability on the paper absolute, as a guarantor of payment, not requiring further notice of dishonor to be given him.</p> <p>Walkeb, J., concurs in the result; Clakk, C. J., dissenting.</p>

Appeal by defendant from Ferguson, J., at the April Term, 1915, of HERTFORD.

Appeal by plaintiff from Connor, J., at tbe July Term, 1914, of HERTFORD. Civil action, tried upon these issues: 1. Did E. E. Cowan, in November, 1907, sell to J. C. Newsome and make and deliver to bim a deed for tbe land described in tbe deed from E. E. Cowan to Dora M. Newsome, of record in Book 32, page 415, in tbe office of tbe register of deeds of Hertford County? Answer: “Yes.” 2.

Appjsal by defendant from Bond, J., at the June Special Term, 1915, of Chatham. This is an action to recover damages, the plaintiff alleging two causes of action, the first being for a breach of warranty in the sale of a mule, and the second being for breach of contract in failing to furnish the plaintiff with a mule with which to cultivate his crop. The damages sought to be recovered under the second cause of action was a diminished yield of the crop.

Appeal by plaintiff from Peebles, J., at tbe September Term, 1914, of CRAVEN. This is a motion to set aside a judgment against J. H. Fisber alone, purporting to baye been rendered at tbe September Term of said court, 1913, by consent. Tbe court finds tbe following facts: 1.

Appeal by defendants from Bond,, J., at tbe May Term, 1915, of HAENETT. Mandamus to compel defendants to audit and pay tbe plaintiff $600, salary as superintendent of bealtb for Harnett County for one year. Upon tbe return of tbe writ it was made absolute, and defendants appealed.

<p>Appeal by defendants from Bond, J., at August Term, 1915, of Pitt;</p>

Appeal by defendants from Bond, J., Spring Term, 1915, from Lee. Civil action pending in Superior Court of Lee County, beard on demurrer and by consent of parties at Pittsboro, Chatham County, on 15 May, 1915.

Appeal by defendant from Daniels, J., at tbe January Special Term, 1914, of Lee. Action to recover personal property wbieb the plaintiff alleges it is entitled to possession of by reason of certain liens and chattel mortgages executed by the defendant. The defendant relies upon the plea of payment, and of an estoppel, arising out of the judgment in an action in which one Jeanson was plaintiff and the present plaintiffs and defendant were defendants.

<p>1. Appeal and Error — Prejudicial Error — Hew Trial.</p> <p>Error committed by tbe trial judge must be prejudicial to be reversible and to entitle tbe appellant to a new trial, for if be is not burt by tbe ruling to wbicb exception was taken, there is no reasonable ground of complaint.</p> <p>2. Appeal and Error — Evidence Rejected — Harmless Error.</p> <p>Where there is a will with two codicils, admittedly valid as to the will and first codicil, but tbe second codicil is sought to be set aside on tbe ground of fraud, declarations of tbe testator made some six or eight months before tbe date of tbe second codicil and previous to that of tbe first one, that tbe husband of the beneficiary was endeavoring to get tbe property therein devised to him, if tbe declarations were competent as evidence in the caveator’s behalf, is not reversible error, under tbe facts of this case, it appearing that there was strong evidence that tbe mind of tbe testator bad subsequently undergone a complete change towards tbe devisee, and that tbe evidence rejected, being merely cumulative, would not have affected tbe verdict.</p> <p>3. Same — Admissions.</p> <p>Upon tbe trial to set aside a will for mental incapacity and undue influence, it appeared that tbe will bad two codicils, tbe latter of wbicb only was sought to be declared invalid, and that tbe date of making the will and first codicil tbe testator was of sound mind, and was free from undue influence. The caveators offered a letter in evidence written by tbe beneficiary under tbe second codicil, bearing upon the mental condition of tbe testator, nearly three years before tbe second codicil was made and before tbe making of tbe first codicil. Held, tbe law presumes sanity when shown to exist until it appears to tbe contrary, and the rejection of tbe letter as evidence was immaterial or, at least, not prejudicial, sufficient mental capacity of tbe testator thereafter being shown with reference to the first codicil.</p> <p>4. Evidence — Witnesses—Impeachment—Warning.</p> <p>Where a witness testifies to matter it is proposed to impeach, by matter tending to show something collateral to the issue involved in the action, he should first be given proper warning before offering the impeaching testimony as to his bias, temper, or disposition towards the parties or the cause, by directing his attention to the impeaching evidence, so that he may have an opportunity to admit, deny or explain it.</p> <p>5. Wills — Mental Capacity — Trials—Instructions.</p> <p>The rule as to the mental capacity requisite for a testator to make a valid disposition of his property by will is sufficiently given when the court charges the jury that they must find that the testator knew at the time the nature and effect of his act, and that he was making a will disposing of his property and to whom, and the relationship o'f the beneficiaries to himself. The early and the more modern rule discussed by Walker, J.</p> <p>6. Trials — Instructions—Wills—Mental Capacity — Prayers for Instruction.</p> <p>There is no special formula required for instructing the jury as to the mental capacity required for the valid execution of a deed or will, and a special instruction requested thereon, though correctly stating the law, will not confine the judge to the language therein used, for it is sufficient if the trial judge substantially gives it in his own words, he not being bound by the language of counsel.</p> <p>7. Wills — Mental Capacity — Undue Influence — Evidence.</p> <p>Mental weakness of the testator from old age, at the time of his making a will, or after his mind has lost a portion of its former vigor and has become weakened by age, disease or otherwise,'compatible with sufficient mental capacity to execute a valid will, provided he understands all that he is about, and choses rationally between one disposition of his property and another, and is able to retain the facts in his mind long enough to dictate or write out his wishes, and to execute the will with the essential formalities.</p> <p>8. Same — Parent and Child — Kindness—Persuasion.</p> <p>Acts of kindness or consideration shown by a child to an aged or sick parent do not, of themselves, show such undue influence upon the latter as will affect the validity of his will disposing of his property in favor of this child; nor will mere persuasion have this effect, where the testator has not been prevented from exercising his free volition; for such acts, to have the effect stated, must amount to such domination by the stronger over the weaker mind as to amount to the substitution of the will of the former for that of the latter, resulting in an unfair advantage over others entitled to the testator’s favor, and who would naturally receive it, but for the intervention of this designing and controlling influence.</p>

<p>1. Insurance, Life — Application—Medical Certificate.</p> <p>Where recovery upon a policy of life insurance is resisted upon the alleged grounds that the insured has made false statements in his application, as to his having palpitation of the heart and other organic troubles, the plaintiff may introduce in evidence the medical certificate of the company’s regular medical examiner, attached to the policy, tending to corroborate the contention of the plaintiff that the'deceased was in good health at the time of the issuance of the policy, and in contradiction of the defendant’s evidence on the question.</p> <p>2. Same — Evidence.—Medical Expert.</p> <p>Where an insurance company resists payment of matured life insurance under its policy, and the certificate of the company’s medical examiner, attached to the policy, has been introduced in evidence, it is competent to ask a medical expert witness whether, upon the matters stated in the certificate, the insured could have had heart trouble at the time, when the question is material to the controversy.</p> <p>3. Insurance, Life —Application —Statements —Physicians —Consultations — Evidence — Trials—Instructions.</p> <p>In this case it is contended by a life insurance company, as a defense to the payment of its matured policy, that the insured had untruly stated in his application that he had not previously consulted other physicians than those he has named, and there is evidence that he had conversations with other physicians about his physical condition. The charge is approved as to whether these conversations were merely incidental or amounted to a consultation.</p>

Appeal by defendants from Connor, J., at the February Term, 1915, of GREENE. Civil action tried upon these issues: 1. Did A. R. Hinson draw the pen lines through the names of Lillian Phillips, Alex. Hagan and Minnie Taylor and through the words giving to each one share, as appears in item 6 of his last will and testament, as alleged? Answer: “Yes.” 2.

<p>Negligence — Pleadings—Demurrer—Municipal Corporations — Secondary Liability — Streets and Sidewalks — Nuisance.</p> <p>A complaint in an action to recover damages for an injury to a nine-year-old child states a good cause of action when it alleges that the defendant negligently emptied, from its manufacturing plant, quantities of hot water which flowed in an uncovered and unprotected ditch, without any sign of warning, along the edge of a city’s sidewalk, obscured by vegetable growth and the steam arising from the hot water, and that the child was seriously injured by falling therein and being scalded; for such, when established, constitute actionable negligence, from the consequences of which the defendant may not relieve itself upon the ground that such conditions amounted to a nuisance, which the city, its co-defendant, should have sooner abated, the liability of the city, if any, being secondary to that of the defendant manufacturing company.</p>

Appeal by defendants from Connor, J., at tbe July Term, 1915, of ONSLOW. Tbe action was brought for tbe specific performance of an “option” by whicb defendants agreed for a valuable consideration, to convey five tracts of land to tbe plaintiff.

<p>1. Deeds and Conveyances — Husband and Wife — Deed of Wife — Contracts— Special Probate — Interpretation of Statutes — Constitutional law.</p> <p>Revisal, section 2107, requiring that contracts made between husband and wife for a longer period than three years, and which affect or change any part of the real estate of the wife, shall be in writing, duly proved as required for conveyance of land, that the examination of the wife, separate and apart from her husband, etc., shall be taken, with the further certificate of the probate officer that it appears to his satisfaction that the wife freely executed such contract and freely consented thereto at the time of her separate examination, and that the conveyance is not unreasonable or injurious to her, is constitutional and valid, including within its terms and meaning a conveyance of lands by the wife to the husband; and therefore such conveyance without compliance with the statutory requirement that the probate officer certify that it “is not unreasonable or injurious to her” is void.</p> <p>2. Same — Amended Certificate.</p> <p>Where it appears that the probate officer of a conveyance of land made by the wife to the husband has omitted to certify that the conveyance was not unreasonable or injurious to her, and after the death of the wife seeks to correct the certificate by a further certificate stating that “it does appear to my satisfaction that the said conveyance is not unreasonable or injurious to her,” the latter certificate speaks as of the time it was made, and it is Held, the second certificate was not an attempt to amend the first one by a statement of fact then existing, but a new and original certificate, which could not give vitality to the deed of the wife.</p> <p>3. Deeds and Conveyances — Essentials—Delivery—Husband and Wife-Special Certificate — Interpretation of Statutes.</p> <p>A deed passes no title to land unless delivered in the grantor’s lifetime, and it must be complete at the time of delivery; and where a deed to lands from the wife to her husband has not been properly probated before her death under the provisions of Revisal, section 2107, the probate may not thereafter be amended so as to make the conveyance' a valid one which otherwise is void.</p> <p>4. Deeds and Conveyances — Husband and Wife — Special Probate — Interpretation of Statutes.</p> <p>Chapter 109, Public Laws of 1911, known as the Martin Act, by express terms is made subject to the provisions of section 2107 of the Revisal, and the construction of that section, that it includes within its terms conveyances of land by the wife to the husband, making the special certificate of the probate officer necessary to the validity of such deed, is not affected by the act of 1911.</p> <p>Walker, J., concurring in result; Clark, C. J., dissenting.</p>

Appeal by plaintiffs from Connor, J., at the May Term, 1915, of Pitt. * Civil action to determine the rights of Annie R. Lang, the widow, and the other devisees of W. M. Lang, under item three of his will, which reads as follows: “Third.

Appeal by plaintiffs from Connor, J., at tbe April Term, 1915, of Pitt. Special proceeding, begun before tbe clerk for tbe assessment of damages for taking land to be used as a street of tbe town, wbicb was appealed by defendant to tbe Superior Court. Tbe deed from Minnie 0.

<p>Appeal by plaintiff from Connor, J., at Spring Term, 1915, of Pamlico.</p>

Appeal by defendant from Carter, J., at the May Term, 1915, of Edgecombe. Action to recover damáges for personal injury. Tbe defendants are nonresidents and no process bas been served on them. A warrant of attachment has been issued and a copy of the same was served on the board of commissioners of the county of Edgecombe, but there is no allegation that the county of Edgecombe is indebted to the defendant.

Appeal by plaintiff from Connor, /.. at the June Term, 1915, of CaRteret. Civil action tried before Connor, Ja jury trial having been waived, and a case stated for the opinion and judgment of the court, which is as follows; 1. The plaintiff, Alonzo Thomas, was at the time of the institution of this action, and prior thereto, the owner in fee and in possession of a tract of land situated in Carteret County, upon which was standing, growing and lying certain timber trees. 2.

Appeal by defendant from Connor, J., at tbe May Term, 1915, of CRAVEN. Civil action to perpetually enjoin tbe cutting of timber upon certain lands. Tbe court rendered judgment enjoining tbe defendants from cutting and removing tbe timber and adjudged that certain funds in bands of trustees and deposited in bank, tbe proceeds of timber cut, be paid to plaintiff. Tbe defendant appealed.

Appeal by defendant from Bond, J., at the August Term, 1915, of Pitt.

Appeal by plaintiffs from Connor, J., at tbe May Term, 1915, of CRAVEN.

<p>Appeal by plaintiffs from Connor, J., at tbe April Term, 1915, of CRAVEN.</p> <p>Civil action, beard on motion to dissolve a preliminary restraining order.</p> <p>Tbe action was to compel commissioners of drainage district to complete and carry out tbe scheme of drainage so as to afford tbe benefits to plaintiffs’ land as contemplated in tbe establishment of tbe district and, in tbe meantime, to restrain tbe collection of tbe assessment laid by tbe drainage commissioners to pay tbe accumulated interest on tbe bonds issued for cost and maintenance, etc.</p> <p>On tbe bearing it was made to appear tbat tbe district bad been established on petition regularly filed; tbat preliminary and final reports bad been approved; drainage commissioners appointed; bonds to tbe amount of $45,000 issued; an assessment made to pay tbe accumulated interest thereon, wbieb tbe commissioners were proceeding to have collected for tbe purpose, as provided by tbe statute, etc.</p> <p>There was evidence, also, on tbe part of plaintiffs tbat, in carrying out tbe scheme of drainage provided for, tbe commissioners bad failed to extend tbe same so as to afford any benefit to plaintiffs’ land, and further, they made some alterations in one of tbe lateral ditches, and allowed one E. A. Richardson to maintain a dam on bis lands lying adjacent to and below tbe lands of plaintiffs, thus preventing a proper drainage of plaintiffs’ lands, contrary to tbe scheme and plan adopted and contained in tbe final report of tbe viewers and confirmed by tbe court.</p> <p>To these allegations defendants offered affidavits making averment tbat tbe commissioners were carrying out tbe plans as contemplated and provided for in tbe report of tbe board of viewers.</p> <p>Further, tbat no alterations were made in tbe canal as established, except to make same more efficient, and these fully within tbe discretionary powers conferred upon them by tbe law, and any minor changes made by them they had acted on their best judgment and under tbe advice and direction of a competent engineer, and tbat they thereby increased tbe efficiency of tbe general plan and afforded better drainage to tbe lands and without increasing tbe cost and estimates shown on tbe final reports.</p> <p>His Honor, on consideration of tbe facts in evidence, entered judgment dissolving tbe restraining order “for tbe purposes of suffering and permitting tbe collection of tbe assessments, and continued tbe cause for such other and further relief as tbe plaintiffs may show themselves entitled to.”</p> <p>Plaintiffs excepted and appealed.</p>

Appeal by both, parties from Garter, J., at the June Term, 1915, of Edgecombe. Civil action to recover damages for personal injuries caused by alleged negligence of defendant company.

<p>1. Contracts — Breach.—Timber—-Evidence—Measure of Damages — Lumber— Market Talue.</p> <p>In an action to recover damages for a breach of contract whereby the plaintiff was prevented from cutting the timber contracted for on the defendant’s land, it is competent, upon the issue as to the measure of damages, for the plaintiff to show the market value of lumber in that locality as a basis for showing his loss after deducting the cost of manufacture, etc.</p> <p>2. Same — Particular Sales — Corroborative Evidence.</p> <p>Where, upon the issue as to the measure of damages arising from a breach of contract in the sale of timber, evidence of the market value of lumber in that locality is relevant and competent, it is permissible to show prices obtained for particular sales of lumber, for such; in the aggregate, show the market value thereof; and evidence of particular sales is especially competent when corroborative of testimony of the market value of the lumber at the time and place.</p> <p>3. Appeal and Error — Objections and Exceptions — Evidence — Unanswered Questions — Contracts—Breach—Damages—Diminution.</p> <p>Where exception is taken to ruling out questions asked a witness on the trial, it must in some way appear what the answers of the witness sought to be elicited would have been, so that the Supreme Court may see wherein the appellant has been prejudiced; and while in this action to recover on a breach of contract the court recognizes and discusses the rule that the party injured is required to minimize his injury by the exercise of reasonable care, it is held that the appellant has not sufficiently shown by his evidence that he is entitled to its application.</p>

Appeau by defendant from Peebles, J., at January Term, 1915, of DupliN. Tbis was an action on a check given for the purchase money of a horse. The issues submitted were: 1. Did the plaintiff warrant the mare to be sound, as alleged in the answer? Answer: “No.” 2. If so, was there a breach of said warranty? Answer: “No.” 3. Is the defendant indebted to the plaintiff, and if so, in what amount? Answer: “Yes, $334.50.” This was the amount of the cheek and interest.

Appeal by defendant from Connor, J., at the May Term, 1915, of CRAVEN. Action to recover land.

<p>1. Drainage — Waters—Condemnation—Compensation—Constitutional Law.</p> <p>While the importance of our drainage laws are fully recognized as affecting the interest of the public to the extent that valid power of condemnation may be conferred by'statute upon corporations or companies engaged in this work, the exercise of this power, being a taking of private property, should be safeguarded, and adequate provision made for compensating the private owners whose lands are taken against their will, or upon which damages are inflicted in the prosecution of the work, and, unless this is done, the law must be declared invalid. Constitution, Art. I, sec. 1.</p> <p>2. Same — Interpretation of Statutes.</p> <p>Chapter 141, Laws of 1915, regulating drainage, provides, among other things, that a majority of landowners or persons owning three-fifths of the land in a given area of “defined swamp or lowland land” may contract with any person, firm or corporation to cut a canal and drain along a proposed route, “whether the owners of said land consented thereto or not,” and the contractor shall have the necessary right of way for that purpose and for all things incident thereto through any lands or timber situated within said “swamp or lowland.” A lien is given on the lands for the payment-of assessments to cover the cost of drainage, etc., and the minority owners are required to pay their proportionate amount of the cost, to be assessed, etc., with no provision for damages beyond the value of the benefits they may receive from the work thus done, or any responsibility placed for the payment of such damages or funds with which to pay them, should they, exist. In this respect the statute is unconstitutional and void, as a taking of private property without providing for just compensation to the private owner of the lands, whose consent has not been given.</p>

<p>1. Evidence — Vendor and Purchaser — Verified Account — Prima Pacie Case.</p> <p>An itemized account purporting to be for goods sold and delivered to the defendant introduced in evidence, in an action to recover the purchase price, and duly sworn to, is competent, and raises a prima facie case as to the amount thereby appearing to be due. Revisal, sec. 1625.</p> <p>2. Vendor and Purchaser — Evidence—Prima Pacie Case — Principal and Agent —Accounting—Burden of Proof.</p> <p>Where a prima facie case has been made out by the plaintiff, in his action to recover the purchase price of goods sold and delivered to the defendant, and the latter contends that he, as the agent for the former, was to sell upon commission, and that he had accounted for such sales, except a small balance which he tendered, or offered to submit to judgment for that amount, the burden is upon the defendant to show the fact of agency, and of accounting thereon, which is for the determination of the jury upon the question of indebtedness.</p> <p>3. Trials — Issues—Forms.</p> <p>Where the issue submitted t)y the court clearly presents the issuable facts in an action, the form thereof is immaterial.</p>

Appeal by defendant from Connor, J., at tbe May Term, 1915, of CRAVEN. Action to recover land. Prior to 27 August, 1892, B. B. Mallison was tbe owner of tbe land in controversy, and on that day be conveyed tbe same to Tbe Meadows Company by mortgage deed, to secure a debt therein set forth. On 1 January, 1906, tbe plaintiff and bis brother obtained a judgment against said Mallison which was duly docketed in tbe county where tbe land is situate.

<p>Costs — Successive Defendants — Sale of Interest — Subsequent Party.</p> <p>Where it appears, in an action involving the title to lands, that the defendant has since then sold his interest therein to another, and the latter, at his request, has been made a party defendant, and the plaintiff has succeeded in the suit, it is proper, in taxing the cost, to tax the one later made defendant with the cost incurred subsequent to his becoming a party, as between the defendants; and to tax both parties jointly and severally with the costs, as it affects the plaintiff.</p>

<p>1. Evidence — X-Ray Photographs — Accuracy.</p> <p>X-Ray photographs taken of a personal injury alleged to have been negligently inflicted by the defendant, in an action to recover damages therefor, may, with proper safeguards as to their accuracy, be used by the witness who has made them in explaining his evidence and be shown by him to the jury for their consideration and enlightenment.</p> <p>2. Same — Expert Testimony — Exhibits to Jury.</p> <p>Where an X-Ray picture of a personal injury, pertinent to the inquiry in an action to recover damages, has been made by a medical expert, who testifies to some experience in making such pictures, and it is a reasonable inference from his evidence that it was an accurate and true representation, and his whole evidence shows that he believes it to be so, it is sufficient evidence of the accuracy of the photograph for the expert to explain his testimony therewith and exhibit them to the jury.</p> <p>3. Appeal and Error — Evidence—Statement of Contentions — Admissions.</p> <p>Where the evidence of both parties are in harmony with the establishment of a certain fact, and the trial judge has erroneously stated it as an admission, the objecting party should have caused the correction to have been made at the time, and in this case no reversible error is found, the judge having clearly stated the contentions of the parties and applied the law applicable to the evidence.</p> <p>4. Instructions — Trials—Charge as a Whole — Harmless Error.</p> <p>The error complained of in the charge in this case is untenable, being taken to statements by the court of the contention of the parties, which arose from the evidence, and to single expressions taken from a paragraph, the charge, construed as a whole, being correct; and this applies to a statement of the court, relating to the contention of the parties, that compensation cannot be awarded for physical pain and mental suffering, which taken alone would be error.</p>

<p>1. limitations of Actions — Contract Price — Payment — Reasonable Time — Questions for Jury.</p> <p>In an action to recover the balance of the purchase price of lands, with allegation and evidence that the defendant purchased the interest therein of the several plaintiffs at a certain price upon agreement that they should receive the same as the other owners of the land, who had subsequently been paid a greater price, the defendant pleaded the statute of limitations, three years and a day or two having elapsed since the transaction with an owner receiving a larger sum. There was evidence per contra. Held, the character of the transaction, if established, implied that the defendant should be given a reasonable time in which to pay the plaintiffs this difference in price, and this question of reasonable time was one to be determined by the jury, together with the question of whether the alleged agreement had been made.</p> <p>2. Contracts — Purchase Price — Definite Sum — Pleadings—Issues.</p> <p>Where the plaintiff in his action seeks to recover a certain sum in addition to that he has received from the defendant for his land, and the defendant denies that he owes more than he has paid, with conflicting evidence as to the extent of the plaintiff’s interest in the lands, hut the defendant does not seek to set aside the sale and there is no averment of imposition or fraud: Held, no issue is raised in diminution or rebuttal of the plaintiff’s demand, the question being whether or not the defendant had definitely agreed to pay this further sum of money.</p>

Appeal by defendant from Bond, J., at the June Term, 1915, of Carteret.

.Appeal by plaintiffs from Connor, J., at the March Term, 1915, of Pitt. Civil action. His Honor rendered judgment sustaining a plea in bar, and the plaintiffs appealed.

Appeal by plaintiff from Peebles, J., at tbe February Term, 19.15, of SAMPSON. Tbe action was brought to recover damages for the negligent billing of the deceased by the defendant’s train, which, it is alleged, was running between Parkersburg and G-arland, on the night of 12 September, 1913. He had attended a revival at Garland that night and went home from there in company with Lula Lamb.

Appeal by defendant from Daniels, J., at tbe Fall Term, 1915, of Wake. Civil action to recover damages for negligent failure to deliver a telegraphic message sent from Durham, N. C., to plaintiff at Ealeigh, and by reason of which plaintiff was prevented from being present at the funeral of her sister-in-law, Mrs. W. D. Pool.

<p>Appeal by defendants from Daniels, J., at tbe May Term, 1915, of ■Wake.</p> <p>Appeal from an order allowing W. H. Pace, trustee, as commissions tbe sum of $350, bis attorney, Jobn Bousball, $25, and cost of advertising, $69.30, and tbe controversy is wholly between tbe defendants Leacb and Pace.</p> <p>Prior to 3 May, 1915, tbe defendant M. T. Leacb borrowed from tbe Raleigb Savings Bank and Trust Company tbe sum of $8,000, and to secure tbe payment of tbe same executed a deed of trust to tbe defendant W. H. Pace upon a storehouse and lot on tbe east side of Wilmington Street in tbe city of Raleigb. Default having been made in tbe payment of tbe said note and interest, tbe said Pace, who was tbe regular attorney of tbe Raleigb Savings Bank and Trust Company, being requested by tbe said trust company, advertised tbe said property for sale at tbe courthouse door in tbe county of Wake, and offered tbe same for sale on 3 May, 1915, wben and where Miss Dixie Leacb purchased tbe said property at and for tbe sum of $15,700.</p> <p>Tbe above entitled action was then brought on 7 May, 1915, by tbe plaintiff, and tbe lot conveyed to secure tbe debt and tbe surplus in bands of trastee were attached by tbe plaintiff.</p> <p>Tbe said trustee rendered bill as follows: Principal, $8,000; interest, $416; advertising, $69.30; auctioneer’s fee, $2; trustee’s commissions, $471, as of date 3 May, 1915; and tbe said Leacb having filed objection to tbe allowance of commissions, $471, advertising, $69.30, and tbe said Pace having requested tbe court to allow an attorney’s fee, bis Honor, J-uclge Daniels, fixed it at $25. It appeared before bis Honor that tbe said W. H. Pace, as trustee, prepared tbe advertisement, • bad it inserted in tbe News and Observer, bad it posted at tbe courthouse door and three other public places; spoke to two or three persons to attend tbe sale, attended tbe sale on 3 May, 1915, which sale occupied one-half or three-quarters of an hour; prepared tbe deed to Mr. Yass, assignee of Miss Dixie Leacb, and made demand upon tbe bidder, Miss Dixie Leacb, for tbe payment of tbe purchase price. These were all of tbe services rendered by Mr. Pace as trustee, and in tbe above-entitled action be filed an answer by bis attorney, Jobn Bousball.</p> <p>Tbe deed of trust contains tbe following stipulations: If tbe said Leacb shall fail or neglect to pay tbe interest on said note as tbe same shall hereafter become due, or both principal and interest at tbe maturity of said note, or any part of either tbe interest or principal wben due and payable, or shall fail for six hours to keep tbe buildings on said property insured as below required, or shall fail for thirty days to pay any taxes or assessments on said property as below required, then, and in either of such events, tbe whole of said note shall be considered due and payable, regardless of tbe date of maturity expressed on tbe face of said note, and it shall be lawful for tbe said Pace, trustee, bis executors, administrators or assigns, to advertise tbe said hereby granted property for sale by notice published in some newspaper published in Raleigh, N. C., and by notice posted at the county courthouse door and three other public places in Wake County, N. C., for a time not less than thirty days prior to the date of sale, therein appointing a time and place of sale, and at such time and place to expose said land at public sale to the highest bidder for cash, and upon such sale to convey the same to the purchasers, and first retaining out of the proceeds of sale the costs of sale, including a commission of 3 per cent on, the proceeds of sale, to pay to the holder of said note so much of the residue as'may be necessary to pay off and discharge the same, and all interest then accrued and due thereon, together with such sums, with interest, as they may have paid out for taxes, assessment or insurance, as below allowed, and to pay the surplus, if any remain, to the said M. T. Leach, his executors, administrators or assigns.</p> <p>It further appeared that the advertisement of the sale of the property appeared daily in the News and Observer, a newspaper published in the city of Raleigh, for thirty days.</p> <p>Upon the foregoing evidence his Honor allowed W. H. Pace, as trustee, for his commissions, $350, allowed the News and Observer for advertisement, $69.30, and allowed John Boushall, as attorney of W. H. Pace, trustee, the sum of $25.</p> <p>1. The defendant M. T. Leach excepted to the allowance of the sum of $350 to the trustee, upon the ground that the same was unreasonable for the service rendered by the trustee.</p> <p>2. The defendant M. T. Leach excepted to his Honor’s allowance of the advertisement in the News and Observer, as it was unnecessary to put said advertisement in said paper daily for thirty days prior to the day of sale, and that the amount of $3 was all that the court could allow for the advertisement.</p> <p>3. The defendant M. T. Leach excepted to the allowance to the attorney of the trustee, $25 — not upon the ground that the same was unreasonable, but that the fee of the attorney of the trustee could not be charged and retained by the trustee out of the proceeds of sale of the lot.</p> <p>The defendant W. H. Pace, trustee, through his attorney, excepted to the allowance of only $350 to the trustee.</p> <p>Both parties appealed.</p>

<p>Appeal by defendant from Devin, J., at the July Term, 1915, of Lee.</p> <p>Civil action. The action was instituted by E. D. Nall, as owner and assignee of E. D. Nall Company, against C. B. Kelly, to recover an account for fertilizers and supplies sold to O. B. Kelly by the Nall Company, Incorporated, during the year 1912. It appearing that C. B. Kelly had been duly adjudged a lunatic, his guardian, Attie E. Kelly, was made party defendant.</p> <p>There is also- a count in the complaint, being section 3, alleging that said O. B. Kelly, now a lunatic, had agreed and promised to- pay said account, the balance thereof amounting to $345.11, with interest from 1 November, 1912. Defendant answered, and in proper terms denied information or knowledge as to sales; denied the promise to pay as alleged in section 3, and denied the general allegation of indebtedness contained in section 4 of the complaint. On issues then joined, plaintiff, in support of his claim, offered in evidence a verified account, giving an itemized statement of all articles sold, with dates; also items of credit and dates, same being headed as follows:</p> <p>SaNford, N. C., 1 January, 1914.</p> <p>Mr. 0. B. Kelly, Broadway, N. 0., in acct. with E. D. Nall Co., Inc. Fertilizer for Lee County farm, by M. B. Hudson.</p> <p>Then follows itemized account, as stated, giving amount and date of the articles, and also amount and date of credits, the account showing a balance due as of 1 November, 1912, of $345.11, and same being verified at bottom in terms as follows:</p> <p>E. D. Nall, having been duly sworn, says that he was an officer of the E. D. Nall Company, a corporation under the laws of the State of North Carolina, during the years 1912-1913, towit, secretary and treasurer, and as such duly authorized to make this affidavit; that the attached itemized statement of account for goods, wares and merchandise sold and delivered to 0. B. Kelly is true and correct; that said items of goods, wares and merchandise therein named were actually delivered to 0. B. Kelly, and that there is due and unpaid thereon the sum of three hundred forty-five and 11-100 dollars, with interest thereon from 1 November, 1912, until paid; that there are no offsets or counterclaims to the same. E. D. Nall.</p> <p>Suscribed and sworn to before me this July 26, 1915.</p> <p>T. N. Campbell, 0. S. G.</p> <p>Defendant objected to introduction of account; overruled, and defendant excepted. No further evidence being offered, there was motion of nonsuit; overruled, and defendant excepted. Verdict for plaintiff for balance due. Judgment on verdict, and defendant excepted and appealed.</p>

Appeal by defendant from Peebles, J., at tbe March Term, 1915, of LENOIR. Civil action tried upon these issues: 1. Were the two cases of yarn the property of the plaintiff? Answer: “Yes.” 2. Did the defendant negligently fail to deliver the two cases of yarn to Suffolk Knitting Mills? Answer: “Yes.” 3. What sum, if any, is the plaintiff entitled to recover of the defendant? Answer: “One hundred and sixteen and 44-100 dollars ($116.44), without interest.”

Appeal by defendant from Whedbee, J., at the February Term, 1915, of Columbus. Civil action.

Appeal by plaintiff from Connor, J., at tbe July Term, 1915, of ONSLOW. Civil action, beard upon an agreed statement of facts. Tbe court rendered judgment for tbe defendants, and tbe plaintiffs appealed.

<p>1. Equity — Parol Trusts — Quantum of Proof — Instructions—Trials.</p> <p>In an action to recover lands, where the defendant holds under a deed formally conveying to him the legal title, and the plaintiff is seeking to correct a mistake in the instrument or annex a condition to it, he is required to make out his claim by clear, strong and convincing proof, the question being one for the jury, with proper, instructions from the court.</p> <p>:2. Same — Appeal and Error — Reversible Error.</p> <p>Where the plaintiffs, the heirs at law of the deceased wife, are seeking to engraft a trust upon the title to lands conveyed to the husband, their stepfather, upon allegation and evidence tending to show that the lands were bought with the money of the wife and that the deed should have been made to her, it is reversible error to defendant’s prejudice for the judge to charge the jury that the plaintiffs must establish their claim by the greater weight of the evidence, it being required that they do so by clear, strong and convincing proof.</p>

Appeal by plaintiff from Daniels, J., at the June Term, 1915, of Wake. Action to recover damages for negligently burning two buildings, the property of the plaintiff, situate on land adjoining the defendant’s right of way. The plaintiff admitted that he could not prove that the fire was set out by the defendant or that it originated from sparks emitted by the defendant’s engine.

Appeal' by defendant from Wedbee, J., at chambers; from BkuNS-wick. Civil action, beard at chambers, on 4 May, 1915, upon motion of defendant to' vacate the judgment therein. The defendant had executed a mortgage to one J. R. Green, on his homestead in Brunswick County to secure a debt of $377.50.

<p>Appeal by defendants from Allen, J., at tbe March Term, 1915, of ROBESON.</p>

<p>1. Railroads — Negligence—Pedestrian—Presumptions.</p> <p>An engineer is not required to stop or slacken the speed of bis running train upon seeing a pedestrian ahead of him on the track, in the apparent possession of bis strength and faculties, and without information to the contrary; for he may act on the assumption that the pedestrian will use his own faculties for his own protection and will leave the track in time to save himself from injury.</p> <p>2. Same — Helpless on Track — Duty of Engineer.</p> <p>It is the duty of an engineer on a moving train, by reasonable watchfulness, to discover a man in front lying on the track or sitting on the cross-ties, in a helpless condition, or in a position of such evident peril that ordinary efforts on his part if exerted would not likely save him from injury, and when such conditions are or should be observable by the engineer in the exercise of proper care and observation, he should stop the train by every available means short of endangering the lives of his passengers, resolving all doubts in favor of the preservation of human life.</p> <p>8. Same — Trials—Evidence—Nonsuit—Questions for Jury.</p> <p>In an action to recover damages of a railroad company for the wrongful killing of the plaintiff’s intestate at night, there was evidence tending to •show that the intestate was subject to epilepsy, and at times liable to attacks in which he would lose consciousness and fall, one of the fits having occurred the day before he was killed; that the track at the point at which the intestate was killed and for a mile and a half was straight; that the intestate was killed at a place upon the track where one standing upright could have been seen by a witness who was looking down the track at the headlight of the approaching train that killed the deceased, and who could not have seen the deceased had he been lying down on the track at the time, and that this witness saw no one there. SelcL, evidence sufficient to be submitted to the jury upon the question of whether the intestate, at the time he was killed, was in a helpless condition on the track, or whether the defendant’s engineer, in the exercise of the care required, should have seen him and stopped the train in time to have avoided th.e injury.</p> <p>Brown, J., dissents. Walker, J., concurs in dissenting opinion.</p>

<p>Appeal by defendant from Daniels, J., at the February Term, 1915, of Wake.</p> <p>The above entitled action, with similar actions by J. C. G-rinnan .and Dorrence Terra Cotta Company, The Ealeigh Iron Works Company, Powell & Powell, Inc., and Young & Hughes, against the above •defendants, were pending in the Superior Court of Wake County, and, by a consent order, were consolidated in one action. The cause was referred to a referee, who took the evidence and made his report, stating his conclusions of fact and law. The plaintiffs filed exceptions thereto, and upon the hearing the Superior Court, Daniels, J., presiding, -sustained the exceptions to the referee’s conclusions of law, and rendered judgment for the plaintiffs. The defendant the Ealeigh Banking .and Trust Company excepted and appealed.</p>

<p>1. Injunction — Public Benefits.</p> <p>Tbe construction of public utilities, or works for public benefit, will not be restrained at tbe suit of private individuals, unless tbe damages caused thereby are both serious in amount and irreparable in character; and where a contractor for paving streets of a city with a combination of asphalt and concrete has located his mixing and heating apparatus near the boarding-house of the plaintiff, and it is found by the trial judge that the location was a proper one for the character of the work, which was for the public benefit, and that the defendant was able to respond in damages for the injuries caused, an order restraining his work to the final hearing will be denied.</p> <p>2. Same — Main Belief — Prima Pacie, Case — Trial by Jury.</p> <p>Where relief by injunction is the principal remedy sought in a suit, the courts will generally continue it to the hearing upon plaintiff’s making out a prima facie case; but this rule has no application where important public works and improvements are sought to be stopped, for in such instances the courts will ordinarily let the facts be found by the jury before interfering by injunction.</p>